Immigration NZ Decision Found Incorrect Due to Lack of Fairness

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207500 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

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

Before: [NAME] (Member)

Representative for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 12 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 23-year-old citizen of [NAME] whose application for residence under the [NAME] ([APPELLANT]) category was declined by Immigration New Zealand. The application included her husband but did not include their daughter who was born after the application was lodged. THE ISSUE [2] Immigration New Zealand declined the residence application because it was not satisfied the appellant’s [NAME] could financially sustain her and her husband’s employment. [3] The principal issue for the Tribunal is whether Immigration New Zealand was correct to decline the application. [4] For the reasons that follow, the Tribunal finds that Immigration New Zealand’s decision was not correct because it failed to assess the appellant’s

2 application in accordance with the principles of fairness and natural justice. The application is returned to Immigration New Zealand for a correct assessment.

BACKGROUND [5] The appellant and her 26-year-old husband are citizens of [NAME]. Neither have travelled to New Zealand. [6] The couple were married in [NAME] in September 2024. Their daughter was born in [DATE]. She was not included in the appellant’s residence application as she was born after it was lodged in March 2025. Registration for the Ballot and Invitation to Apply [7] On 28 June 2024, the appellant registered under the [APPELLANT] for [NAME] citizens. The appellant’s registration was drawn from the ballot and, on 13 August 2024, Immigration New Zealand wrote to the appellant and invited her to apply for residence in New Zealand. Residence Application [8] The instructions under the [NAME] ([APPELLANT]) category for [NAME] citizens require, amongst other things, that an applicant have an acceptable offer of employment or have a partner, included in the application, who has an acceptable offer of employment (see S1.40.30). [9] On 21 March 2025, the appellant lodged an application for residence under the [NAME] ([APPELLANT]) category for [NAME] citizens. She included her husband and, in the application, indicated she had received an offer of employment in New Zealand. However, no evidence of an employment offer was attached to her application. [10] On 31 March 2025, the appellant emailed Immigration New Zealand attaching a draft employment agreement for the appellant and her husband to work in a fruit orchard for [APPELLANT].

3 Immigration New Zealand’s Verification [11] On 1 April 2025, Immigration New Zealand wrote to [COMPANY] and requested they complete an attached questionnaire, answer questions set out in the email and provide the following information as evidence the company is able to financially sustain the job offers: (a) A franchise agreement, if part of a franchise. (b) A list of current clients. (c) Cash projections for the next 12 months. (d) Last completed financial statement. (e) Business bank statement. [12] Immigration New Zealand requested a response by 8 April 2025; however, no response was received. Immigration New Zealand’s Concerns [13] On 15 April 2025, Immigration New Zealand wrote to the appellant advising her that it had attempted to verify the job offer with [COMPANY] but had not received a response from the employer. Immigration New Zealand stated it was therefore not satisfied the appellant had provided an acceptable offer of employment under instructions S1.40.30.a and .b. [14] It advised it had not made a decision and gave the appellant until 29 April 2025 to send any comments, additional evidence or information. [15] In correspondence, the appellant sought extensions in time (which were granted) to 12 May 2025 and then to 20 May 2025. Appellant’s Response to Immigration New Zealand’s Concerns [16] On 20 May 2025, [COMPANY] responded providing the completed questionnaire, answers to the questions set out in the immigration officer’s email and indicating they had attached the requested cash projections, financial statement and the business’ bank statements. The employer stated a franchise agreement and list of current clients were not applicable. That is presumably

4 because [COMPANY] was not a franchise and it did not have a client list because it operated as a subcontractor to a primary contractor, as per the service agreement provided. Immigration New Zealand’s Response [17] On 21 May 2025, Immigration New Zealand wrote to the appellant advising it was not satisfied that the job offered to her and her husband could be considered sustainable employment. [18] It advised it had not made a decision and gave the appellant until 4 June 2025 to send any comments, additional evidence or information. Appellant’s Further Response to Immigration New Zealand’s Concerns [19] On 29 May and 11 June 2025, the employer responded to Immigration New Zealand re-stating their belief that [COMPANY] was able to provide continuous and sustainable employment and requesting advice as to what further information would assist. [20] On 11 June 2025, Immigration New Zealand wrote to the appellant advising it had received the further letter of [NAME] from the employer however it was not satisfied its concerns were mitigated. Immigration New Zealand’s Decision [21] On 9 July 2025, Immigration New Zealand declined the appellant’s residence application because she had not provided acceptable offers of employment for herself and her husband (S1.40.5.a.v) because it was not satisfied the employer could financially sustain their employment (S1.40.30.a.). 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 [NAME] was made; or

5 (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 15 August 2025, the appellant lodged this appeal on both grounds in section 187(4). [25] The appellant’s representative submits Immigration New Zealand failed to meet its obligation to clearly state its concerns regarding the sustainability of the employment offer to allow the appellant a fair and proper opportunity to respond to the potentially prejudicial information. [26] In [NAME] of the appeal, the representative provided a copy of the company’s New Zealand Companies Office record stating [COMPANY] was incorporated in July 2024. Other documents provided were before Immigration New Zealand when it made its decision and included Immigration New Zealand’s customer interaction notes and correspondence between Immigration New Zealand and the appellant. [27] On 7 May 2026, the representative provided evidence of a new job offer the appellant had received and accepted. An employment agreement was provided, signed and dated 7 May 2026, as evidence the appellant had accepted the new offer to commence full-time (40 hours per week) work as a [NAME] for the [NAME]. Further information provided on appeal [28] 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). Therefore, the Tribunal is unable to consider the Companies Office record or recently signed employment agreement in the assessment of whether Immigration New Zealand was correct to decline the application. However, given the outcome of the appeal, that

6 information can be considered by Immigration New Zealand in its reassessment of the application. ASSESSMENT [29] The Tribunal has considered the submissions 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. [30] 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 [31] The application was made on 21 March 2025 and the relevant criteria are those in the residence instructions as at that time. Immigration New Zealand declined the application because the appellant had not provided an acceptable offer of employment for herself and her husband (S1.40.5.a.v) in that Immigration New Zealand was not satisfied the employer could financially sustain their employment (S1.40.30.a.). Relevant instructions [32] In order to be granted residence, an applicant under the [NAME] ([APPELLANT]) category of instructions must meet the relevant criteria set out in S1.40 of instructions (effective 1 August 2024). The applicant must have an acceptable offer of employment or have a partner, included in the application, who has an acceptable offer of employment (see instruction S1.40.5.a.v). [33] An acceptable offer of employment must be on-going and sustainable, as required under instruction S1.40.30: S1.40.30 Acceptable offers of employment a. Acceptable offers of employment may be in either a skilled or unskilled occupation but must be for on-going and sustainable employment. On-going and sustainable employment is: i. an offer of employment or current employment with a single employer which is permanent, or indefinite, and of which the employer is in a position to meet the terms specified; or

7 ii. an offer of employment or current employment, with a single employer for a stated term of at least 12 months. [34] Instructions also require Immigration New Zealand to act fairly and in accordance with natural justice principles set out at instruction A1.5 (effective 29 November 2010): A1.5 Fairness 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. [35] For the reasons that follow, the Tribunal finds that Immigration New Zealand failed to act in accordance with the principles of fairness and natural justice in the assessment of the appellant’s application when it failed to articulate its concerns that the employment offer could not be considered sustainable employment. Failure to articulate its concerns [36] Pursuant to the draft employment agreement which the appellant provided on 31 March 2025, the appellant and her husband had received an offer of employment from [COMPANY]. The employment agreement stated work commenced on 12 March 2025, and the appellant and her husband would be paid $23.50 per hour to work 40–50 hours each week from Monday to Sunday. [37] On 20 May 2025, the employer responded to Immigration New Zealand’s request for further information. The employer attached the completed questionnaire, provided answers to the questions set out in the immigration officer’s email of 1 April 2025 (including confirming the roles offered were

8 permanent) and indicated that they had attached the requested cash projections, financial statement and the business’ bank statements. [38] In the questionnaire, the employer stated [COMPANY] was incorporated in July 2024, started trading in October 2024 and that it carried our orchard work, including pruning, picking and thinning fruit. It had eight staff and the employer stated they offered the appellant and her husband a job after being contacted through one of the appellant’s family members who is in New Zealand. [39] The employer provided the company’s cashflow projection for June 2025 to May 2026, its bank account statements from 1 March 2025 to 15 May 2025, a GST return summary from 1 October 2024 to 31 March 2025, an organisational structure chart for the company and an orchard services agreement. Under the orchard services agreement, [COMPANY] (the sub-contractor) agreed to provide pruning, thinning, harvest picking, and other services, to the main contractor. [40] On 21 May 2025, Immigration New Zealand wrote to the appellant advising it was not satisfied that the job offered to her and her husband could be considered sustainable employment. It stated: Please note that to determine the sustainability of your NZ employer, we had requested information from your employer. We considered the information submitted by your employer; however, we are not satisfied that the job offered to you can be considered as sustainable employment. [41] It gave the appellant until 4 June 2025 to send any comments, additional evidence or information. [42] On 29 May 2025, the employer responded to the immigration officer re-stating their belief that they were able to provide continuous and sustainable employment: I am confident that we can provide a sustainable employment to [NAME] from [NAME] and to ensure that they can be well supported here in New Zealand through the work we provide and through our continuous [NAME] to them. … Last but not least, I am requesting your kind and favourable advice to confirm whether or not my job offer is genuine so that I will know my position, and to advice my [NAME] I am currently helping, that [[COMPANY]] is not the choice at this stage and they have to look out for other job offers in order for their [NAME] to be taken further to the next stage in the process. [43] On 2 June 2025, Immigration New Zealand wrote to the appellant: [redacted]

9 This is to advise that we have received a response from you NZ employer on 29/05/2025. His response does not alleviate the concerns raised in our letter of 21/05/2025 which is that you do not have an acceptable job offer. Therefore, please note that our concerns remain and due date for a response is 04/06/2025. [44] On 3 June 2025, the appellant responded to Immigration New Zealand requesting an extension in time for her to apply for a new job. Immigration New Zealand stated an extension could be provided to Thursday, 12 June 2025. [45] On 11 June 2025, the employer (from [COMPANY]) responded further, providing a letter of [NAME] from the [NAME] stating, “if there’s more that you need please let me know”. In a separate email sent later the same day, the employer stated: I am pretty sure the work I am providing is continuous and sustainable however if there are grounds that need me to consider further in line with Immigration conditions, I would be grateful for any feedback or advice if appropriate. [46] On 9 July 2025, Immigration New Zealand issued its decision declining the application. [47] The Tribunal finds that Immigration New Zealand’s concerns regarding the sustainability of the offer of employment were vague and poorly articulated. It seemed to suggest that it was not satisfied that [COMPANY] was in an acceptable financial position to be able to [NAME] the appellant and her husband’s on-going employment. However, there was no explanation given as to what information which had been provided demonstrated that, or what information was missing that could satisfy that requirement. [48] In response, and despite Immigration New Zealand’s lack of guidance, the employer attempted to provide reassurance that [APPELLANT] could provide work and continuous [NAME] to the appellant and her husband in New Zealand, and sought some direction from Immigration New Zealand by stating “if there’s more that you need please let me know” and “if there are grounds that need me to consider further in line with Immigration conditions, I would be grateful for any feedback or advice”. [49] Immigration New Zealand provided no such guidance. Even in its decision to decline the appellant’s application it did not provide reasons for its finding that [COMPANY] could not provide sustainable employment. It simply stated, “We are not satisfied that your NZ employer [COMPANY] can financially sustain you and your

10 husband’s job offers”. It acknowledged it had received the letter from the [NAME] but stated it remained dissatisfied that the letter “alleviates the risk that your employer is able to financially sustain your job offers”. Immigration New Zealand did not identify what evidence before it demonstrated the company was not in an acceptable financial position to be able to provide sustainable employment. [50] On appeal, the representative submits Immigration New Zealand failed to specify the nature of its concerns regarding the employer’s financial sustainability and, even in its decision letter, did not give any basis for why it held those concerns. The Tribunal agrees. Without specifying the issues, Immigration New Zealand did not properly inform the appellant of its concerns and, as a result, did not give the appellant a reasonable opportunity to respond to its concerns. Further, it failed to give appropriate reasons for declining the application. Therefore, in this case, the Tribunal finds that Immigration New Zealand failed to act fairly and in accordance with the principles of natural justice as required under instruction A1.5. Conclusion on correctness [51] The Tribunal finds that Immigration New Zealand’s assessment was not correct because it did not act fairly when it failed to articulate its concerns as to why the employment offer could not be considered sustainable employment. That error means the Tribunal cannot be confident that Immigration New Zealand followed a fair process and reached the correct conclusion. DETERMINATION [52] This appeal is determined pursuant to section 188(1)(e) of the Immigration Act 2009. The Tribunal considers the decision to refuse the [NAME] 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 [NAME]. [53] 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 [NAME] in terms of the applicable residence instructions, in accordance with the directions set out below. Directions [54] 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 her application within a reasonable timeframe, including to add the couple’s daughter to the application, if she sees fit.

3. If the newly received offer of employment from [NAME] remains open to the appellant, Immigration New Zealand shall determine whether that employment is on-going and sustainable employment.

4. If Immigration New Zealand considers it requires the appellant and/or the [NAME] to provide further information before it can make that determination, Immigration New Zealand is to request the necessary information in clear and concise terms with reasons.

5. If the offer of employment is no longer open to the appellant she is to be given a reasonable opportunity to put forward evidence of any new offer of employment and have any new offer assessed.

6. The application is then to be assessed against the remaining relevant instructions.

7. 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.

12 Certified to be the Research Copy released for publication.

[NAME] Member [55] The appellant is to understand that the success of this appeal does not guarantee that her application will be successful, only that it will be subject to reassessment by Immigration New Zealand. [56] The appeal is successful in the above terms. Order as to Depersonalised Research Copy [57] 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 or either [NAME]. “[NAME]” [NAME] Member