Immigration & Protection Tribunal Allows Exception Despite Rejection

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207487 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

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

Before: [NAME] (Member)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 25 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 51-[NAME]-old citizen of Tonga whose application for residence under the [NAME]) [APPELLANT] was declined by Immigration New Zealand. The application included his [NAME], and their two [NAME] children (13 and 17 years old), all [NAME]. THE ISSUE [2] Immigration New Zealand declined the appellant’s residence application because his wife was not eligible to support his application as she is not a New Zealand citizen or resident. The decision to decline the application was correct. [3] The principal issue is whether the appellant has special circumstances to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions. [4] For the reasons that follow, the Tribunal finds that the appellant does have special circumstances.

2

BACKGROUND [5] The appellant and his wife were both born in Tonga. They were married there in 1995. In 1998, [NAME] and [NAME], then aged one [NAME] old, first arrived in New Zealand as the holders of visitor visas. [6] After the expiry of their visitor visas, from November 1998 until October 2014, the appellant and his wife were unlawfully present in New Zealand. [NAME] was unlawfully present from 1998 until he was granted a student permit in 2001. [7] Between 1998 and 2004, [NAME] had four further children in New Zealand, now aged between 21 and 27 years old. Those four children are citizens of New Zealand by birth. [NAME]’s [NAME] child was granted a resident visa in 2018 and has since become a citizen. [8] In 2009 and 2012, [NAME] had two further children, now aged 17 and 13 years old, both born in New Zealand. As they were born after 1 January 2006 (when the Citizenship Amendment Act 2005 came into effect), and their parents were not citizens or permanent residents at the time, they are not New Zealand citizens by birth. They are [NAME]. [9] In 2014, the Minister granted the appellant a work visa, his wife and the [NAME] child visitor visas, and the [NAME] [NAME] child a student visa, under section 61 of the Act. Since then, the appellant held a series of work visas until his most recent work visa expired in June 2025. [10] From 2018, the wife and two [NAME] children held temporary visas and then interim visas pending the appellant’s application for a resident visa. The interim visas expired in June 2025 and they have been unlawfully present in New Zealand since then. Residence Application [11] On 30 September 2024, the appellant lodged an application under the [NAME]) [APPELLANT] of residence instructions. [12] [NAME]) [APPELLANT] instruction F2.5.d states an application will be declined if the application is not supported by an eligible New Zealand citizen or resident partner.

3 [13] The application included a cover letter from counsel acknowledging the application for residence would be declined and requesting the decline decision be issued quickly so that the appellant could lodge an appeal to the Tribunal. Immigration New Zealand’s Decision [14] On 24 June 2025, Immigration New Zealand declined the appellant’s application because it found his wife was not eligible to support the application as she is not a New Zealand citizen or resident. [15] Immigration New Zealand noted that, in addition to the wife’s ineligibility to support the application, it was concerned that the appellant and his wife did not meet the character requirements for residence as they both had previous convictions in New Zealand and a character waiver assessment would be required. STATUTORY GROUNDS [16] 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. [17] 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 [18] On 1 August 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.

4 [19] In submissions, filed with the Tribunal on 5 August 2025, counsel submits special circumstances arise out of the desire for family unity, the best interests of the two [NAME] children and of [NAME]’s six grandchildren, and given [NAME] and their children’s settlement in New Zealand over the past 28 years. [20] In support of the appeal, counsel provided copies of documents already provided to Immigration New Zealand and letters from all seven of [NAME]’s children (dated 30 or 31 July 2025) describing the close relationships between the siblings and their parents. The children describe their parents as hard-working parents who sacrificed a lot to provide for their children. The [NAME] (now 27 years old) states she has a heart condition which she has managed for the past 10 years. [21] On 18 May 2026, the Tribunal requested the appellant provide a full copy of the Tongan police certificate dated 19 September 2024. On 20 May 2026, the representative provided a full copy of the Tongan police certificate which recorded the appellant was convicted of two charges (bodily harm, and assault) on 19 September 1990. In accompanying submissions, the representative submits that as the convictions were entered more than 35 years ago, the offending can be considered minor. [22] The Tribunal takes the additional documents into account, as necessary, for its determination of whether the appellant has special circumstances (see section 189(3)(b) of the Act). ASSESSMENT [23] The Tribunal has considered the submissions and documents provided on appeal and the files provided by Immigration New Zealand in relation to the appellant’s residence application, and Immigration New Zealand’s relevant electronic records for the appellant, his wife and their children. [24] Although the appellant appeals only on the ground of having special circumstances, the Tribunal’s jurisdiction requires that it first assess whether Immigration New Zealand’s decision to decline the application was correct in terms of the applicable residence instructions. This is set out below and is followed by an assessment of whether the appellant has special circumstances which warrant consideration of an exception by the Minister of Immigration.

5 Whether the Decision is Correct [25] The application was made on 30 September 2024 and the relevant criteria are those in the residence instructions as at that time. Immigration New Zealand declined the application because the [NAME] was not an eligible supporting partner for his application as she is not a New Zealand citizen or resident partner. [NAME]) [APPELLANT] instructions [26] A [NAME]) [APPELLANT] residence application will be declined if it is not supported by an eligible New Zealand citizen or resident partner (F2.5.d.i, effective 8 May 2017). [27] A “New Zealand partner” is a New Zealand citizen or resident who is supporting an application for a residence class visa made by their non-New Zealand citizen or resident partner (F2.10.2, effective 23 December 2019). A “New Zealand resident” is a person who holds, or is deemed to hold, a current New Zealand residence class visa, or holds a valid Australian passport (F2.10.5.a). [28] The [NAME] is not a New Zealand citizen or resident. At the time the application was lodged, she was the holder of a work visa. She did not hold a valid Australian passport. As the application was not supported by an eligible New Zealand citizen or resident partner, it had to be declined under instruction F2.5.d.i. Conclusion on correctness [29] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application for residence was therefore correct. Whether there are Special Circumstances [30] 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.

6 [31] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. [32] 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. Personal and family circumstances [33] The appellant and his wife were both born in Tonga and were married there in 1995. They have seven children. In 1998, [NAME] and [NAME] first arrived in New Zealand. [NAME]’s six other children were born in New Zealand between 1998 and 2012. [34] The appellant and his wife have six grandchildren who live in New Zealand and are New Zealand citizens. [NAME] has three children, one of whom is 9 years old, and the [NAME] daughter has three children, aged 10, 8 and 7 years old. [35] The appellant has previously been employed as a residential and commercial painter. Counsel states that, at some point after 2021, the appellant’s employment became “untenable”, but he found “ad hoc” work to support his family. [36] The [NAME] has been employed in [NAME]. She does not hold qualifications but has previously held employment at [NAME]. Criminal offending [37] Both the appellant and his wife have criminal convictions for violence. [38] In September 1990, the appellant was convicted of two charges in Tonga: bodily harm, and assault. He was convicted and ordered to pay $30 compensation, or serve 14 days imprisonment, and placed on probation for one [NAME]. There is no evidence before the Tribunal which sets out the circumstances of the offending other than counsel’s submission that the appellant’s sentence reflects the low seriousness of the offence. The appellant was 26 years old at the time.

7 [39] In August 2001, the appellant and his wife were convicted in New Zealand on charges of assault. The appellant was convicted of one charge of cruelty to/ill-treatment of his daughter on 1 June 2000, when she was two years old. The wife was convicted of five charges relating to assaults on the daughter on 1 June 2000 and 1 October 2000, when the daughter was two and three years old: (a) one charge of cruelty to/ill-treatment of a child; (b) two charges of assault on a person with a blunt instrument; (c) one charge of assault on a child (manually); and (d) one charge of assault with intent to injure. [40] There is no evidence before the Tribunal which describes the circumstances of the assaults on their daughter. Counsel states that, due to the historic nature of the offending, records such as sentencing notes are not available. In submissions, counsel states [NAME]’s [NAME] daughter was initially raised by her grandparents in Tonga, and, after arriving in New Zealand, she became “unsettled, disobedient and refused to accept parental direction”. Counsel states that, “lacking the tools and parenting knowledge to manage her behaviour, the [NAME] resorted to physical discipline”. [41] A police vetting report (7 May 2026) for the appellant records he was convicted of one charge of cruelty to/ill-treatment of a child and sentenced to 9 months’ supervision and 6 months’ imprisonment, which was suspended for a period of 18 months. [42] A police vetting report (8 May 2026) for the wife records she was convicted of the five charges listed above and sentenced to one [NAME] and six months’ imprisonment (on each charge, to be served concurrently) and granted leave to apply for home detention. Counsel states the wife served four months of her sentence of imprisonment and a further two months of home detention. [43] The appellant’s police vetting report (7 May 2026) also reveals that, on 15 August 2001, he was convicted of two charges of breaching fisheries regulations. For each charge, he was convicted and sentenced to pay a fine of $200. No evidence is before the Tribunal to describe the circumstances of that offending.

8 [44] In 2001, the appellant and his wife completed a [NAME] course administered by a [NAME]. The programme organiser confirmed to Immigration New Zealand that [NAME] completed the course and stated that she visited [NAME]’s home unannounced in the months after the course and was pleased with [NAME]’s progress. The programme organiser stated that it appeared [NAME] had applied what they had learned during the course. [45] As at 7 and 8 May 2026, the appellant and his wife have no further convictions and the police vetting reports do not record any other interactions with police. [46] The Tribunal acknowledges that the sentence imposed for the appellant's offending in Tonga, and for breaching fisheries regulations, reflect a low gravity of offending for each charge. However, the same cannot be said regarding [NAME]'s offending against their daughter in New Zealand. Given how young their daughter was at the time of the offending — which demonstrates her inherent vulnerability — the number of charges the wife was convicted of, and the sentences imposed, that offending, and particularly the wife’s offending, can only be considered serious. [47] While acknowledging that, the Tribunal also observes that the offending occurred 25 years ago, and that the appellant and his wife have not committed any further offences in New Zealand. [NAME] (who was the victim in the offending) also expresses a deep love for her parents. Immigration history [48] In February 1998, the appellant, his wife and [NAME] first arrived in New Zealand as the holders of visitor visas. From November 1998, when their temporary visas expired, [NAME] were unlawfully present in New Zealand. [NAME] was unlawfully present from 1998 until he was granted a student permit in 2001. He was granted a resident visa in 2018 and has since become a citizen. [49] [NAME]’s four children born between 1998 and 2004 are citizens of New Zealand by birth. [50] Immigration New Zealand records indicate that in September 2000, the appellant filed an appeal to the then Removal Review Authority (predecessor of the Tribunal). It records that on 13 December 2000, the appeal was withdrawn,

9 and, in January 2001, the appellant lodged an application for a work permit which was declined in June 2003. The records also indicate that, on 4 July 2002, while Immigration New Zealand was processing the application for a work permit, it received confirmation from police that the appellant and his wife’s had been convicted in August 2001 of the offending against their daughter. In June 2003, the Minister of Immigration refused to grant a special direction to the [NAME] and also refused to grant a character waiver to the appellant. [51] For reasons that are not clear to the Tribunal, after withdrawal of the appeal to the Removal Review Authority in 2000, and the Minister’s refusal to grant the appellant and his wife special directions in 2003, the appellant and his wife remained unlawfully present in New Zealand. [52] [NAME] had children born in New Zealand in 2004, 2009 and 2012. While the child born in 2004 is a New Zealand citizen by birth, [NAME] are not, they are citizens of Tonga. [53] In 2014, under section 61 of the Act, the Minister of Immigration granted the appellant a work visa, his wife and the [NAME] child visitor visas, and the [NAME] [NAME] child a student visa. Since then, the appellant, his wife and their two [NAME] children have been granted a series of temporary visas which allowed them to remain lawfully in New Zealand for more than 10 years. Their last visas expired in 2025. Interim visas were granted to all four while the appellant’s application for a resident visa was pending. Those visas expired in June 2025. [54] It appears that, from approximately 2000, Immigration New Zealand was aware that the appellant and his wife were unlawfully present in New Zealand, and, while it took action to deport them, those proceedings did not result in the deportation of the appellant and his family members. From 2002 onwards, Immigration New Zealand was aware of the appellant’s and his wife’s respective criminal convictions in New Zealand. Even with the knowledge of those convictions, and that [NAME] and their children had spent approximately six years in New Zealand without visas, from 2014, Immigration New Zealand granted the appellant, his wife and their two [NAME] children temporary visas which permitted them to remain in New Zealand lawfully.

10 Settlement in New Zealand (a) The appellant and his wife [55] The appellant and his wife have resided in New Zealand for the past 28 years. The appellant has previously been employed as a residential and commercial painter. The wife has held employment in [NAME]. [56] [NAME] are active in their [NAME]. The co-ordinator of a [COMPANY] describes (21 August 2024) the appellant as “a pillar” of his local [NAME] and states he holds a leadership role as a [NAME]’s elder. His wife is actively involved in the [COMPANY]. [57] It is submitted that, for most of their 28 years in New Zealand, the appellant and his wife have focussed on raising their seven children, and now help to care for their grandchildren. During this time, they have fostered close relationships with [NAME]’s New Zealand-based extended family and built strong ties through their contributions to and involvement in their [NAME] and local community. (b) Child born in Tonga [58] [NAME] was born in Tonga and came to New Zealand when he was one [NAME] old. He is now 29 years old and is a citizen of New Zealand. He completed all his schooling in New Zealand and fondly describes growing up here, including his involvement with the family’s [NAME]. [59] [NAME] and [NAME] sister each have three children of their own. [NAME] states (30 July 2025) that the appellant and his wife have a close and loving relationship with their grandchildren. (c) Children born in New Zealand before 2006 [60] [NAME]’s next four [NAME] children were born in New Zealand and are New Zealand citizens by birth. They are now aged 27, 25, 23 and 21 years old. [61] The New Zealand citizen children have never lived outside of New Zealand, and all refer to their family, and their parents, as being close, loving and supportive.

11 (d) Children born in New Zealand after 2006 [62] [NAME] were born in New Zealand but are not New Zealand citizens by birth. They are [NAME]. They are now aged 17 and 13 years old. They have never lived outside of New Zealand. [63] As at August 2025, the younger child was enrolled at intermediate school, and the elder at high school ([NAME] 12). They live together with their parents in A city. Connection to Tonga [64] The appellant and his wife spent the first half of their lives living in Tonga. They will speak the language and have relatives there. The Tribunal has not been presented with evidence of who from their families remains in Tonga, but their travel records indicate that over the years they have regularly travelled back to Tonga for short stays (one month or less) several times per [NAME]. Their children have also travelled back to Tonga, but less frequently than the appellant and his wife. It is likely there are family members in Tonga who could provide the family with support if they were to return there. [65] While the appellant and his wife will be familiar with life in Tonga, their [NAME] two children have only spent short periods there when they were young. They travelled to Tonga in 2015 for one month, and again at the end of 2017 for one month. They have not left New Zealand for the past eight years. While they would have family support there, it would be difficult for the two [NAME] children to adjust to life in Tonga. Best interests of the children and family unity [66] 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 children are a primary consideration and must be afforded substantial weight; [NAME] v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [49]. The best interests of the children are not the paramount consideration, as per [NAME] v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24] per Tipping J.

12 [67] The Tribunal also notes that it must have regard to the interests of family unity under Article 23(1) of the 1966 International Covenant on Civil and Political Rights, which provides that the “family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. [68] [NAME] are children affected by the outcome of the appeal. The [NAME] of [NAME]’s grandchildren appears to be 10 years old, and the Tribunal accepts that all six grandchildren will also be affected by the outcome of the appeal. The best interests of any children affected must be considered having regard to their particular circumstances and the nature and quality of the relationships which they have in New Zealand. [69] [NAME] was attending [NAME] 12 of high school in 2025. In a letter (30 July 2025), he states he wants to stay in New Zealand as he dreams of becoming a rugby player. He also states he has a close bond with all his siblings and his parents. [70] [NAME] was attending intermediate school in 2025. In a letter (30 July 2025), she states New Zealand is her home and the only place she wants to live. She states she does not want to be separated from her five older siblings who are New Zealand citizens because they all share a close bond. She says she does not want to live in Tonga as she believes they have a better life in New Zealand. [71] No evidence regarding the circumstances of [NAME]’s six grandchildren has been provided. However, [NAME] states (30 July 2025) the appellant and his wife are part of the “[NAME]” that helps care for the grandchildren. [72] Each of the five elder siblings have provided letters to the Tribunal in which they describe their family as closely bonded. They express their hope that their [NAME] two siblings can remain in New Zealand, where they have family support, and where they have better educational and sporting opportunities than in Tonga. Health [73] Immigration New Zealand’s records indicate that, as at 16 June 2025, it was satisfied that the appellant, his wife and their two [NAME] children all had an acceptable standard of health for residence.

13 Discussion on special circumstances [74] The appellant, his wife and [NAME] have been living in New Zealand for 28 years. In 2001, [NAME] were both convicted of serious offending involving violence against [NAME], who was two and three years old. The appellant also has four other convictions for less serious offending. [NAME]’s convictions for violence against their daughter are serious, the Tribunal acknowledges that the appellant and his wife have not been convicted of any further offending in the past 25 years or had any recorded involvement with police. [75] [NAME] were unlawfully present in New Zealand from 1998 to 2014. However, they were not deported during that time and had six further children while living here. While their [NAME] five children are New Zealand citizens, their [NAME] two children are not. [NAME]’s seven children consider New Zealand their home and describe their parents as loving and as providing them with support, including caring for [NAME]’s six New Zealand citizen grandchildren. The Tribunal is satisfied it would be in the two [NAME] children’s, and six grandchildren’s, best interests for the [NAME] to remain in New Zealand permanently. [76] The Tribunal finds special circumstances do exist for the appellant, his wife and their two [NAME] children. [NAME] (who were granted consecutive temporary visas from 2014 to 2025 despite their prior convictions) and their children are well-settled in New Zealand and consider it their home. A grant of residence to the appellant and his family is the appropriate way to recognise their connection to New Zealand and to preserve the relationships between them and their New Zealand citizen children, grandchildren and siblings. Conclusion on special circumstances [77] Having regard to the circumstances of the appellant, his wife, the two [NAME] children and the rest of the family in New Zealand, the Tribunal finds that, considered cumulatively, there are special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to residence instructions.

14 Certified to be the Research Copy released for publication.

[NAME] Member DETERMINATION [78] Pursuant to section 188(1)(f) of the Immigration Act 2009, the Tribunal confirms the decision of Immigration New Zealand to be correct in terms of the applicable residence instructions but considers that the special circumstances of the appellant are such as to warrant consideration by the Minister of Immigration as an exception to those instructions. [79] Pursuant to section 190(5) of the Act, the Minister of Immigration: (a) must consider whether a residence class visa should be granted, as an exception to residence instructions, to the appellant and to the secondary [NAME] in his residence appeal; and (b) may, if granting a resident visa, impose conditions on the visa in accordance with section 50 of the Act. [80] Pursuant to section 190(6) of the Act, the Minister of Immigration is not obliged to give reasons in relation to any decision made as a result of a consideration of the Tribunal’s recommendation. Order as to Depersonalised Research Copy [81] 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