Immigration NZ's Credibility Assessment Found Flawed by Tribunal

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207476 [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] 29 April 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 33-year-old citizen of Vietnam whose application for residence under the Family ([APPELLANT]) category was declined by [NAME]. THE ISSUE [2] [NAME] declined the appellant’s residence application because it did not consider that the appellant and his wife had been credible in all their statements. [3] The [NAME] issue for the Tribunal is whether [NAME] undertook a fair and balanced assessment of the relevant evidence. [4] For the reasons that follow, the Tribunal finds that [NAME]’s conclusions as to credibility were flawed. The decision is cancelled, and the application is returned to [NAME] for a correct assessment.

2

BACKGROUND [5] The appellant arrived in New Zealand in April 2011 as an 18-year-old to study English holding a student visa. He misunderstood the conditions of his visa and worked part time. [NAME] became aware of his employment, and when he sought a subsequent visa in January 2012, his application was declined. The appellant’s mental health deteriorated, and he remained in New Zealand unlawfully. [6] In 2021 the appellant commenced a relationship with his now wife, also a Vietnamese national. She had two young children from a [NAME] marriage. In January 2024 the [NAME] married, and in July 2024, they had a son. [7] On 1 August 2024 the appellant was granted a visitor visa as an exception to instructions pursuant to section 61 of the Immigration Act 2009 (the Act). He then lodged an application for a work visa on 17 August 2024, and on 9 September 2024 an application for a resident visa, both on the basis of his [APPELLANT]. [8] While his applications were being processed, on 28 September 2024 the family flew to Vietnam to visit relatives. When they attempted to return in October, the appellant was refused boarding onto the plane due to concerns regarding his funds and immigration history, and his visa was cancelled. He therefore remained in Vietnam to await the processing of his visa applications. His wife and three children stayed with him until they felt compelled to return to New Zealand in July 2025, without him. They returned to Vietnam for a visit between December 2025 and February 2026. [9] The appellant remains offshore while his family are in New Zealand. Residence Application [10] The appellant’s application for residence under the Family ([APPELLANT]) category of residence instructions was lodged in September 2024 and was processed, alongside his application for a work visa, while he was offshore. [11] Family ([APPELLANT]) category instructions require that an applicant is living together with his or her partner in a genuine and stable relationship and that both the applicant and partner have been credible in all statements made, and evidence presented, by them to [NAME].

3 [NAME]’s Verification [12] On 8 January 2025 the appellant and his wife were interviewed by [NAME]. The appellant said that he was introduced to his wife in 2021 when he was looking for alternative accommodation, but they had known of each other from [NAME] social situations. They began a romantic relationship around January 2022. [NAME] said they met in 2021 and commenced a romantic relationship in January 2022. [13] On 12 March 2025, the [NAME] were interviewed a second time, asked similar questions, and answered similarly. When [NAME] was specifically asked if she had met her husband before 2015, she stated she did not remember what year she had met him at a friend’s house as they were very casual interactions through the community before their formal introduction (2021). [14] [NAME] was also asked about a company the appellant had registered in 2015 which had the same name as a company she had registered in 2020. She stated that she was not aware of his company as she did not know him in 2015. She was further asked if she knew her husband had lived at a particular address that she had lived at in [ADDRESS], (“the [ADDRESS] address”), the same address he had registered his company to. She was not aware that he had lived there nor that his company had been registered to that address. [15] The appellant answered that he had not known his wife before 2015. They had mutual friends, and there were several occasions at parties when they had seen each other prior to his moving into her house in 2021, but they had not known each other. He confirmed that he had registered a company in 2015 and said that his friend had registered the company for him at [NAME]’s address (the [ADDRESS] address) because he was between residences at the time. He had lived at the [ADDRESS] address briefly in 2011 and 2012, but not since. [NAME]’s Concerns [16] By letter dated 10 April 2025, [NAME] wrote to the appellant with concerns regarding his and his wife’s credibility, and concerns as to his character. [17] With respect to the credibility concerns, [NAME] noted that the information indicated that the [NAME] knew each other before the declared date (2021) and may have shared an address earlier. This was because the

4 appellant had stated that he had lived at the [ADDRESS] address in 2011 and had a company registered to that address between 2015 and 2019. His wife had provided a letter written by a [NAME] in support of her residence application (November 2018) stating that she lived at the [ADDRESS] address between 2015 and 2016. [18] It also noted that the name of the company the appellant registered at the [NAME] in November 2015 was substantially similar to the name of the company his wife registered in June 2020. [19] [NAME] further noted that it had concerns about the source of a deposit of substantial funds that was made into the wife’s account in May 2024. The originating bank account appeared to have been opened and closed solely for the transaction, and the information that the funds had come from his wife’s father was not credible because he had previously been declared bankrupt. [20] With respect to character concerns, [NAME] recorded that it considered the appellant had provided false and misleading information. This is because he had been issued a Personal Income Tax Number (PIT ID) from Vietnam in 2017. [NAME] understood that applicants for PIT IDs must be present in Vietnam when they were issued. As its records showed that he was in New Zealand between 23 April 2011 and 27 September 2024, it considered that he had used nongenuine travel documents to facilitate his travel to Vietnam at that time. Appellant’s Response to [NAME]’s Concerns [21] The appellant’s representative responded (18 May 2025) reiterating the relationship timeline. He included a letter from [NAME] who confirmed that she had only known the appellant prior to 2021 as a community acquaintance, not a friend. It was her flatmates who were his friends. The representative provided a letter from [COUNSEL], the wife’s [NAME] at the [ADDRESS] address, confirming that she had known both the appellant and his (now) wife in separate relationships. [22] The representative emphasized to [NAME] that the appellant and his wife are and were a part of the [NAME] and therefore it was common to be at the same social gathering with other Vietnamese nationals and yet not know them.

5 [23] That the appellant and his wife had both lived at the same [ADDRESS] address at different times was a coincidence, as was the registration of their respective companies in similar names. When the appellant registered his company, he had asked a close friend to assist him because his English language was limited at the time. The representative provided a letter written from the friend confirming this. She also confirmed that the address the company was registered to was not where the appellant was living at the time, but the address of a friend, [NAME] who confirmed in writing the use of her address for the registration. [24] The representative pointed out that there are three other companies registered in substantially similar names on the [NAME] demonstrating that it is a common name. She further listed the addresses both the appellant and his wife had lived at between 2011 and 2022, and provided evidence for each residence. [25] The representative additionally provided further evidence in support of the genuine nature of the funds in the wife’s bank account, including a letter from her father and financial documentation confirming the transfers and how and why her father had obtained the funds. [26] With respect to the character concerns, the representative provided evidence that the appellant had not given false and misleading information with respect to the obtaining of his PIT ID. Before he left Vietnam in 2011, he had completed documentation to authorise his brother to act on his behalf in administrative and legal matters. The representative provided the power of attorney document (20 April 2011) in favour of his brother. It was his brother who applied for his PIT ID to complete a land transaction from their mother to the appellant. The representative provided a full copy of the appellant’s [NAME] passport, and a letter from the immigration department of the police in Vietnam confirming that he had not entered Vietnam at the relevant time. [27] The representative additionally made comprehensive submissions with respect to the appellant’s character and fully explained the family’s situation. [NAME]’s Decision [28] On 9 July 2025 [NAME] declined the appellant’s application for residence on the basis that it considered he and his wife had not been credible in statements made to it (F2.30.a.i). It did not accept that it was a coincidence that both the appellant and his wife had previously had the same

6 address and had used similar company names. It therefore considered that the [NAME] had some form of relationship well before the time they declared they had met in 2021. [29] [NAME] also noted that since it had raised its concerns with the [NAME] they had acknowledged that they were acquaintances earlier than 2021 which raised concerns about the authenticity of the claimed relationship history. It therefore did not consider the appellant and his wife had made consistently credible statements (F2.30.a.i). [30] [NAME] further recorded that the character concerns previously raised had not been determined because the application was being declined on other grounds. [31] The appellant’s application for a work visa was similarly declined on 8 July 2025. STATUTORY GROUNDS [32] The appellant’s right of appeal arises from section 187(1) of 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. [33] The residence instructions referred to in section 187(4) are the Government residence instructions contained in [NAME]’s Operational Manual; see www.immigration.govt.nz. THE APPELLANT’S CASE [34] On 21 July 2025, the appellant’s representative lodged this appeal on both grounds in section 187(4). She submits that [NAME] did not consider all aspects of the appellant’s situation and has been unduly harsh. Further that it had targeted the appellant at the airport in Vietnam, cancelling his

7 visa unfairly forcing him to remain outside of the country. The result has been devastating for the family. [35] In support of his appeal, the appellant provided the following documents: (a) Statements (undated) from [NAME] and two elder children who are missing the appellant. (b) Psychologist Assessment Report (30 August 2025) by [NAME], Registered Psychologist, stating that the family’s separation is taking a serious and concerning toll on the wife’s mental health. Both the wife and children are exhibiting signs of anxiety and stress, and depression on the part of the wife. (c) Photographs of the appellant and his family including of them maintaining their relationship between Vietnam and New Zealand. (d) Documents confirming (July 2025) that [NAME] sold one of her companies whilst in Vietnam as she had been unable to operate it from offshore. (e) Confirmation of five companies that have been, or are, registered under a name substantially similar to the appellant and his wife’s companies. (f) Statements already provided to [NAME] in explanation of the similarity of the company names, the [NAME] associations and connections with the [ADDRESS] address. (g) Evidence already provided to [NAME] regarding the appellant’s brother obtaining a PIT ID for him. (h) Evidence already provided to [NAME] confirming the genuine source of the funds [NAME]’s father gifted to her. (i) Full copies of the appellant’s current and [NAME] passport. (j) Further evidence that the appellant and his wife have lived together in a genuine and stable relationship since 2022.

8 (k) Evidence of all three children being New Zealand citizens. (l) Financial documents relating to the wife’s businesses. (m) Evidence of the wife’s December to February visit to Vietnam. [36] The Tribunal cannot consider further information provided by an appellant that was not before [NAME] at the time that it made its decision to decline the application (section 189(1) of the Act). The exceptions to section 189(1) at section 189(3)(a) are not available to the appellant because the further information provided by the appellant did not exist at the time [NAME] made its decision (189(3)(a)(i)). ASSESSMENT [37] The Tribunal has considered the submissions provided on appeal and the file provided by [NAME] in relation to the appellant’s residence application, and [NAME]’s relevant electronic records. [38] An assessment as to whether the [NAME] 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 [39] The application was made on 9 September 2024 and the relevant criteria are those in residence instructions as at that time. Instruction F2.30.a (effective 29 November 2010) states that when determining if a [NAME] is living together in a [APPELLANT] that is genuine and stable, the immigration officer will [NAME] into account certain factors and must consider, and be satisfied, that there is sufficient proof of all four of the following elements both independently and together: i. ‘Credibility': the [NAME] applicant and the partner both separately and together, must be credible in any statements made and evidence presented by them. ii. ‘Living together': the [NAME] applicant and partner must be living together unless there are genuine and compelling reasons for any period(s) of separation (see F2.30.1). iii. '[APPELLANT]': the [NAME] applicant and partner must both be found to be genuine as to their: ● reasons for marrying, entering a civil union or entering into a de facto relationship; and

9 ● intentions to maintain a long term [APPELLANT] exclusive of others. iv. '[APPELLANT]': the [NAME] applicant and partner must demonstrate that their [APPELLANT] is likely to endure. [40] In considering applications, [NAME] must adhere to the principals of fairness set out at A1.5 (effective 29 November 2010), as follows: 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. 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 resident in New Zealand for a number of years and is applying for a permanent resident visa. Effective 29/11/2010 [41] A breach of A1.5 by [NAME] will only render a decision incorrect if it has caused prejudice to the applicant ([NAME]) [2018] NZIPT 204216 at [60]). [NAME]’s assessment [42] [NAME] declined the application because it did not consider that the appellant and his wife had been credible in all statements made by them (F2.30.a.i). It found inconsistencies in the relationship timeline, primarily due to them both having lived at and/or used the same address at earlier dates and having registered similarly named companies.

10 [43] The [NAME] stated that they had been introduced through a friend in 2021 when the appellant was looking for alternative accommodation and his wife was looking for a [NAME]. The appellant moved into the wife’s home as a [NAME] in November 2021, and their relationship transitioned into a [APPELLANT] in January 2022. [44] [NAME] accepted that the [NAME] was in a genuine and stable relationship from January 2022 onwards and the evidence in this regard was credible. However it determined that the relationship had commenced earlier than 2021 based on its assessment of the following evidence: (a) The wife’s evidence from her residence application (2018) had stated that she had lived at the [ADDRESS] address from June 2015 to September 2016. The [NAME] showed that the appellant had registered a company on 27 November 2015 using the [ADDRESS] address and he had accepted that he had lived at the [ADDRESS] address in 2011. They therefore had an address in common prior to 2021. (b) The company the appellant registered (27 November 2015) was named [APPELLANT]. The company [NAME] registered (2 June 2020) was named [APPELLANT]. The similarity in names, along with the shared address, indicated that the [NAME] knew each other earlier than 2021. (c) [NAME] stating, after the letter of concern was sent, that they were acquaintances prior to 2021 ostensibly contradicted their earlier evidence that they had met in 2021. [45] [NAME] found the [NAME] to not be credible in their statements and evidence because it considered they had not initially declared that they had known each other prior to 2021, and it was not until further questioned that they admitted as such. Assessment [46] The Tribunal finds that [NAME]’s decision to decline the appellant’s application for residence on the basis of a lack of credibility was not correct, for the following reasons.

11 — Disclosures [47] [NAME] proceeded on the basis that the appellant and his wife only declared they knew each other prior to 2021 when the evidence that they had was put to them. Specifically, in its decline letter (9 July 2025) it stated: We are not satisfied of the explanation because prior to raising our concerns, you failed to declare that you both knew each other prior to 2021 or that you had ever met which raises credibility concerns. [48] It additionally recorded in the decline letter that the appellant stated in his “relationship timeline” that the [NAME] met for the first time in November 2021. [49] Based on the file provided by [NAME], and the Tribunal’s subsequent correspondence with [NAME], the “relationship timeline” it appears to be referring to was in fact the statement by [NAME] dated 16 August 2024. In this statement she said they had known each other before 2021 when they were introduced as potential flatmates. Saying her friend had got in touch about possible accommodation for her best friend: who I met a few time ago when I came over to her place for a visit but we just so hello to each other like a polite greetings, me and him we not talk more than that. [50] The Tribunal accordingly finds that the wife did disclose from the outset that she and the appellant knew of each other before they were formally introduced in 2021. [51] Further, the [NAME] had provided four letters (5, 6, 11 and 12 August 2024) from mutual friends who had known them both independently before the [NAME] commenced a relationship showing the community interconnectedness. These letters were provided in support of the application thereby demonstrating that the [NAME] had not been deceptive regarding their [NAME] brief interactions through their mutual community prior to their formal introduction to each other in 2021. [52] The Tribunal is accordingly satisfied that the premise upon which [NAME] approached the appellant’s application, that he and his wife had declared they had not met prior to 2021, was erroneous. [53] The Tribunal additionally finds that [NAME] was mistaken to find that the appellant and his wife only became honest when challenged. Both in the documentation submitted with the application and in their oral evidence it was clear that they knew of each other and had on occasion met briefly prior to their formal introduction in 2021 to discuss the appellant’s living arrangements.

12 This was not information that was subsequently disclosed, but information that had been provided from the outset. [54] A second misstatement of the evidence by [NAME] occurred in its letter of concern (10 April 2025). It wrote: in an interview with [NAME] [[NAME]] conducted on 12 March 2025, you stated that you that you met for the first time in November 2021… [55] However, this was not an accurate reflection of what the appellant had said. In the appellant’s first interview (8 January 2025) the transcript indicates that he was asked a compound question regarding how he met his wife: when did you first meet each other, and how did you meet? Describe your relationship progressed, the story of your courtship. Dates and places. [56] In response, the appellant described how their relationship started as a result of him moving into his wife’s home as a [NAME]. He also noted “we knew of each other in some occasions with parties of various friends…” [57] In his second interview (12 March 2025) he was specifically asked if he had known his wife before 2015, to which he replied “no”. He then elaborated on this answer with the following: we had a mutual friend they were several occasions where she had a party and we met at that time… We were not involved at the time… I only knew her we were not involved… It was only in November 2021 when I moved into my friend’s house that I realised that I had met her before. [58] The appellant did answer no to the specific question of whether he knew his wife before 2015, and immediately expanded on this statement by explaining that whilst he did not know her before November 2021 when he moved into her home, he had met her prior to then. [59] [NAME] therefore misstated what the appellant said at interview: he did not know his wife prior to November 2021, although he had met her (as in a passing acquaintance) prior to this time. Naturally the appellant and his wife’s answers were focussed on their [APPELLANT] relationship, not how they knew of each other prior, however they did not hide this fact. [60] Furthermore, the appellant and his wife’s responses to [NAME]’s challenges were clear and consistent. Specifically, [NAME] wrote (undated) in response to the letter of concern, that her husband had been an acquaintance prior to 2021 as he was a friend of a [NAME]. She said:

13 I only saw or spoke to him sometimes. We did not spend time together personally, and I had no reason to contact him because we are just acquaintances. Because of the very limited and casual meeting, I honestly don’t remember much about him from those early days in the past. I mentioned our official relationship date is November 2021, because that is when we actually started to get closer… [61] The Tribunal notes that the appellant had nothing to gain by providing an incorrect relationship commencement date. When the application was made (September 2024) the [NAME] had been living together almost three years, had married and had a child together. The fact that they are aware of each other within the community prior to the meeting that led to their cohabitation and relationship was superfluous to the genuine nature of the relationship. [62] [NAME] must assess inconsistencies, or the perception of inconsistencies, fairly and in light of all other information demonstrating the genuineness and stability of a [APPELLANT] (see OX ([APPELLANT]) [2016] NZIPT 203320 at [30]). The Tribunal is satisfied that it did not in this instance. — Company address [63] The appellant had registered his company in 2015 at an address his wife was living at the time with her [NAME] husband and flatmates. His explanation was that a friend had assisted him in the registration, and he had used [NAME]’s address because he did not have a fixed address at the time. In support, he provided letters from both friends confirming these arrangements and a letter from the friend he was living with at [NAME] address at the relevant time. [64] [NAME] did not accept this explanation because the company registration included his name and signature, and he could not provide “credible evidence to support” the explanation. [65] The Tribunal finds that [NAME] did not give sufficient reasons for this finding. That the appellant’s name and signature were on the registration form does not, in itself, disprove his explanation. Further, the Tribunal is unclear what “credible evidence” [NAME] was expecting. The appellant was unlawfully in New Zealand at the time and was regularly relocating himself. He would have no reason, nor likely ability, to keep objective evidence regarding where he was living for the 10 intervening years. That the best evidence available to him were these supporting letters is understandable.

14 — [COMPANY] [66] [NAME] found further support for its view that the appellant and his wife were in a relationship prior to 2021 in the fact that they both had registered companies with substantially similar names (albeit five years apart). It acknowledged that the name used was a common business name and there were reasons for the name choice, however because of the common address, it assessed this information to mean that the appellant and his wife had known each other in 2015. [67] [NAME] explained that in June 2020 she wanted to open a [NAME] because her (then) husband was a tiler. She chose the name because it was a common name which gave a good impression, was simple and positive. It was a coincidence that it was similar to the appellant’s earlier registered company. They were not close friends in 2015 nor 2020, only acquaintances wholly unaware of each other’s affairs. [68] The appellant wrote (29 April 2025) that he established his company to cover his living expenses although little information is given in this regard. Due to his limited proficiency in English, he had asked a friend to fill out the form and to choose the [COMPANY]. He provided a statement (15 May 2025) from the friend confirming this. He was transient at the time so used [NAME]’s address (the [ADDRESS] address) as the company address. He provided a letter (20 April 2025) from [NAME] confirming that she had agreed for him to use the address to register his company. She also confirmed that the wife and her [NAME] husband shared the [ADDRESS] address with her from 2015 to 2016. [69] [NAME] was correct to accept that the similarity in the company names was understandable given the connection between the name and an industry/trade. However it misinterpreted this information in finding that it proved that the appellant and his wife were sharing an address in 2015 and that their relationship began prior to 2021. — Supporting letters [70] [NAME] found that the supporting letters outlining the [NAME]’s living arrangements between 2011 and 2021 did not adequately address the inconsistencies it identified. Specifically, it found a letter from their mutual friend [NAME] undermined the [NAME]’s credibility.

15 [71] The relevant letter (20 April 2025) stated that [NAME] knew the appellant from Vietnam as they both came from the same hometown and attended the same high school. She said: In late 2015, he asked me to get my permission to get my address for him to open his company because he was looking to move from his place and was keen to move with us so I didn’t mind him using our address but then he moved to [NAME] place. [72] Of [NAME], she said that the wife and her [NAME] husband shared her flat from 2015 to 2016 after [NAME] [NAME] moved out. From living together, they became good friends. [73] [NAME] did not give clear reasons why it found this letter undermined the appellant and his wife’s credibility. Particularly in light of the fact that [NAME] had written a letter in support of their application (5 August 2024) confirming that she had known the appellant for 12 years and his wife for eight years. She was therefore both consistent and upfront regarding her position as a mutual friend. Her evidence was additionally consistent with the appellant and his wife’s evidence. [74] [NAME] also misstated [NAME]’s evidence, as is noted in its decline letter, that the appellant “used the [ADDRESS] address for [his] business and stayed there briefly”. Her letter made no mention that he had stayed at the [ADDRESS] address with her. [75] The appellant had provided a letter from [NAME] (22 April 2025) whom he had lived with at the [ADDRESS] address confirming that they lived there together for: a [NAME] of months in 2011. Then we moved and shared a flat at… And we stayed there for almost two years… [76] He further provided a letter from [NAME] [NAME] (10 January 2025) who confirmed that they lived together at [NAME] address between 2014 and 2015 and included evidence of residence at that address. Finally, he provided an additional letter from [NAME] [NAME] (16 May 2025) confirming that she lived with the appellant at [NAME] address (including evidence of her residence) in 2016 and 2017. He in fact had provided supporting evidence of all residences between 2011 and 2021, none of which overlapped with his wife’s similarly confirmed residences.

16 [77] [NAME] appears to have either not considered or disregarded the suite of letters and supporting evidence confirming that the appellant and his wife had lived at separate residences between 2011 and 2021. While it was open for [NAME] to reject such evidence, it could only do so on proper grounds, and would need to provide reasons for rejecting the evidence. Moreover, and at the very least, the fairness obligations it had (A1.5) required it to properly engage with this evidence. Summary [78] For the reasons discussed above, the Tribunal finds that [NAME] did not give the appellant’s application for residence proper consideration, it did not consider all relevant information, and it did not give appropriate or sufficient reasons for its decision to decline the application. This was in breach of A1.5.a. In particular, it did not keep an open mind towards all evidence which is in breach of instruction A1.15.b (effective 29 November 2010). [79] The Tribunal additionally considers that [NAME] placed disproportionate weight on the degree of the [NAME]’s acquaintance with each other some nine years prior to the application. At the time the wife was married to her first husband and there is no evidence the appellant and her had any level of relationship other than being from the same community and passing acquaintances. Instruction F2.30 requires [NAME] to assess whether the [NAME] were living together in a [APPELLANT] that is genuine and stable. There is no suggestion that they had not been doing so from January 2022. [80] Furthermore, what [NAME] did not ostensibly have regard to, was that in all their ‘statements made and evidence presented by them’ (F2.30.a.i) the appellant and his wife were consistent. Their evidence regarding their relationship matched although it may have been expressed in differing ways. [NAME] actually accepted this consistency, as evidenced in its electronic records, however this significant finding was disregarded in its conclusion. [81] The Tribunal is additionally satisfied that [NAME]’s breach of its requirements to act fairly has resulted in prejudice to the appellant. This is because, had the evidence been properly and fairly evaluated, the outcome may well have differed. The Tribunal is satisfied that [NAME]’s decision went against the weight of evidence that was before it at the time.

17 [82] In the appellant’s case, the consequences of the decision were significant, not just for him, but also for his wife and the children, who were, and now remain, separated from the appellant. Such severe consequences mean [NAME] was required to approach the assessment of the application with a high level of fairness. The Tribunal is not satisfied that [NAME] performed its assessment with the requisite level of care, and this has been to the significant detriment of the appellant, his wife and three young New Zealand-citizen children. Conclusion on correctness [83] The Tribunal finds that [NAME]’s decision to decline the appellant’s application for residence on the basis of a lack of credibility (F2.30.a.i) was not correct. It did not conduct a balanced and proper assessment of all the evidence provided by the appellant supporting that he and his wife knew of each other prior to 2021 but were only formally introduced (leading to the commencement of their romantic relationship) in 2021. [84] [NAME]’s decision accordingly breached fairness principles (A1.5.a) to the prejudice of the appellant and went against the weight of evidence. The application is therefore returned to [NAME] for a correct assessment. DETERMINATION [85] 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. [86] The Tribunal therefore cancels the decision of [NAME]. 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.

18 Directions [87] It should be noted that while these directions must be followed by [NAME], 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 [NAME] 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. Given the length of time the appellant has now lived apart from his young New Zealand-citizen children and wife, it would be appropriate for [NAME] to prioritise its reassessment. 3. [NAME] has already found the appellant has met F2.30.a.ii,iii and iv, it is to reassess the application in terms of credibility. It is then, if appropriate, to go on to determine the unresolved character concerns based on the considerable evidence already provided and any further relevant evidence the appellant may have. 4. [NAME]’s assessment is to consider all submissions, statements and evidence it has before it in an open minded way and whilst having regard to the Tribunal’s findings as set out above, at [47] to [84].

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

6. If, at any stage, [NAME] 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. [88] 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 [NAME]. [89] The appeal is successful in the above terms.

19 Certified to be the Research Copy released for publication.

[NAME] Member Order as to Depersonalised Research Copy [90] 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. “[NAME]” [NAME] Member