Immigration & Protection Tribunal Allows Humanitarian Appeal Against Deportation

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 507263 [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

__________________________________________________________________ DEPORTATION (NON-RESIDENT)

DECISION __________________________________________________________________ [1] This is a humanitarian appeal by the appellant, a 28-year-old citizen of [NAME], against his liability for deportation which arose when he became unlawfully present in New Zealand following the expiry of his visitor visa. THE ISSUE [2] The primary issue is whether there are exceptional circumstances of a humanitarian nature arising from the best interests of the appellant’s [NAME] daughter, and his [NAME] wife, and having regard to the challenging circumstances the appellant would face on a return to [NAME]. [3] For the reasons that follow, the Tribunal allows the appeal and directs that the appellant be granted a resident visa.

2

BACKGROUND [4] The appellant was born on the island of Niutao and grew up on the island of Vaitupu. His family were living in the capital city Funafuti until his mother’s death. The family then returned to Vaitupu where his father, [NAME] and her husband remain. The appellant’s three older sisters and one older brother live in New Zealand. [5] The appellant has travelled to New Zealand on three occasions. He first arrived in June 2016, aged 18 years old, as the holder of a three-month visitor visa. The appellant did not depart until February 2017 and was therefore unlawfully present in New Zealand for five months. In November 2019, the appellant returned to New Zealand as the holder of a limited visa under the [NAME]. He held five successive limited visas under the same category. [6] In April 2021, he met his wife, who is a [NAME]. They were married in May 2022. The appellant departed New Zealand in August 2022, before his last limited visa expired. He returned to Vaitupu and lived with his father, sister and her husband. [7] On 21 July 2023, the appellant arrived in New Zealand as the holder of a visitor visa granted on the [APPELLANT] of his partnership with his wife. In January 2024, he applied for, and in July 2024 was granted, a further visitor visa based on his partnership. [8] Also in July 2024, the couple’s daughter was born in New Zealand. She is a [NAME]. [9] On 26 July 2025, the appellant’s visitor visa expired. Since that date, the appellant has been unlawfully present in New Zealand. STATUTORY GROUNDS [10] The grounds for determining a humanitarian appeal are set out in section 207 of the Immigration Act 2009 (the Act): (1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

3 (a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and (b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand. [11] The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Immigration Act 1987, the almost identical predecessor to section 207(1): (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand: [NAME] v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]. [12] To determine whether it would be unjust or unduly harsh for an appellant to be deported from New Zealand, the Supreme Court stated, in [NAME], at [35], that an appellant must show a level of harshness more than a “generic concern” and “beyond the level of harshness that must be regarded as acceptable in order to preserve the integrity of New Zealand’s [NAME]”. THE APPELLANT’S CASE [13] The appellant’s case is set out in the appeal form and in answers to a questionnaire lodged with the Tribunal on 2 December 2025. They are summarised as follows: (a) The appellant is married to a [NAME] and together they have a [NAME]. The couple and their daughter live together, along with the wife’s mother in Auckland. The wife works in a rest home. The appellant’s four older siblings also live in New Zealand. (b) The appellant has never had paid employment in [NAME]. When living there he was supported by his mother (now deceased) who was a primary school teacher and his father who fished and grew vegetables. However, his father is now elderly and requires support. The appellant has little prospect of finding employment given the high rate of unemployment in [NAME]. (c) The only family remaining in [NAME] is the appellant’s elderly father, [NAME] and her husband. The family do not own any property or other assets and do not have any rights to land or housing there.

4 (d) The appellant has no medical conditions and wishes to be able to work to support his family here in New Zealand. Materials and Documents [14] In support of his appeal, the appellant provides the following documents: (a) His wife’s birth certificate recording she was born in New Zealand; (b) The couple’s marriage certificate recording they were married in New Zealand on 13 May 2022; and (c) The bio data page of his passport. ASSESSMENT [15] The Tribunal has considered the submissions and documents provided by the appellant. It has also considered the appellant’s Immigration New Zealand file in relation to his temporary visa applications and its relevant electronic records. Whether there are Exceptional Circumstances of a Humanitarian Nature [16] Exceptional circumstances of a humanitarian nature “must be well outside the normal run of circumstances” and, while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”: [APPELLANT] v Minister of Immigration, at [34]. The appellant’s personal and family circumstances [17] The appellant is one of six siblings. Of these, four live in New Zealand where they are residents. The eldest brother is a [NAME] and states (1 June 2023) that almost all of the appellant’s older siblings have started their own families in New Zealand. The appellant’s 74-year-old father remains on Vaitupu island and lives with the appellant’s 26-year-old sister and her husband. [18] The appellant’s family does not own property or assets in [NAME] and he has never had paid employment in [NAME].

5 Settlement in New Zealand and nexus here [19] The appellant worked as a fruit-picker in New Zealand between November 2019 until August 2022. In April 2021, while working in Hastings, the appellant met his wife, a [NAME]. She was born in New Zealand and is a citizen, although her parents were born in [NAME]. The appellant and his wife were married here in May 2022, and since he returned to New Zealand in July 2023, they have been living together, with the wife’s mother, in Auckland. In July 2024, the couple’s daughter was born. [20] Since arriving here in July 2023, the appellant has held visitor visas granted on the [APPELLANT] of his partnership and therefore has not been permitted to work. His wife works in a rest home. [21] The couple attend a [NAME] in Auckland. A [NAME] reverend states (30 May 2023) the couple were married in the [NAME] and, after the appellant departed New Zealand in August 2022, the wife remained a committed member of the [NAME]. [22] The appellant lived lawfully in New Zealand for almost three years from 2019 and 2022 and has now lived in New Zealand for another period of almost three years since July 2023. Tribunal acknowledges that in the time the appellant has been in New Zealand, he appears to have achieved a reasonable level of settlement through his marriage to a [NAME], the birth of their daughter, and through his connections to his siblings and to his local [NAME] community. Country conditions in [NAME] [23] [NAME] is a [NAME] country comprised of nine low-lying islands and atolls with a total land area of only 26 square kilometres. The population has nearly tripled in the last 100 years and is now sitting at approximately 11,000 people. This growth in population, particularly on Funafuti, has affected the environment through the expansion of urban areas, habitat destruction, increased pressure on natural resources, and increased waste generation and pollution; Secretariat of the [NAME] State of Environment Report: 2022 (1 July 2022) at pp5 and 48.

6 [24] The Tribunal has addressed general country conditions in [NAME] in detail in several previous humanitarian decisions, including: Limoni [2023] NZIPT 505874, [NAME] ([NAME]) [2023] 505998–999, [NAME] ([NAME]) [2023] NZIPT 506048–051; [NAME] [2023] NZIPT 505975 and [NAME] ([NAME]) [2024] NZIPT 506395–396. It is well-established that the country faces environmental, developmental and socio-economic challenges which pose a very real concern for those living there. [25] In Limoni, the Tribunal discussed poverty and unemployment rates as follows: [32] In 2020, the [COMPANY] estimated that a quarter of [NAME]’s population lived below the [NAME] line: the [COMPANY] at [NAME] (% of population) (2020). The VNR report states that poverty is increasing with the proportion under the poverty line increasing from 17 per cent in 2005 to 35 per cent in 2020, at p43-44. … [34] With respect to employment, [NAME] has a high unemployment rate and has experienced a continuous gradual decline in the employment to population ratio over the last three decades: the VNR report at p47. In Funafuti, the government is the main employer accounting for 44 per cent of the employed population. The [NAME] ([NAME]) and [NAME] ([NAME]) have estimated that there are only 695 people employed in the private sector in [NAME]: [NAME] and [NAME] the Pandemic: [NAME]’s Socioeconomic Resilience in a COVID-19 World (2021) at p8. This report also describes the public sector in [NAME] as ‘saturated’ and noted that 67 per cent of workers who had been laid off during the pandemic had been unable to find alternate employment. It further noted that 50 per cent of households surveyed expressed the need for financial assistance to meet daily food needs. Youth unemployment is high (in 2017 estimated at 39 per cent): The Borgen Project Fighting Poverty in [NAME] through Community (21 May 2020) at https://borgenproject.org. [26] Also in Limoni, the Tribunal referenced at [27] the [NAME] Government’s [NAME] ([NAME]) Preliminary Environmental and Social Management Plan (February 2022), which identified the following environmental issues in [NAME]:

1. High climate change vulnerability. [NAME] is extremely vulnerable to the adverse impacts of climate change, variability, and extreme weather events.

2. Land degradation. [NAME] experiencing land degradation due to compaction in highly built up and high traffic areas and deformation of landscape due to extraction of embankment/aggregate materials.

3. Coastal erosion is a major problem in [NAME], particularly on the western side of the islands.

4. Because the very low elevation, the islands are prone to coastal flooding from strong waves, high tides, and storm surges.

7 5. Groundwater quality is deteriorating in terms of increased salinity and pollution from pit latrines and septic tanks. This problem gets worse during dry seasons.

6. Illegal dumping of solid waste in the ocean and in abandoned borrow pits, due to the inadequacy of solid waste collection services.

7. The country lies just north of the main cyclone belt and is occasionally affected by tropical cyclones. [NAME] was severely hit by the [NAME] in 2015. The latest cyclone to affect the country was [NAME] in 2020 which brought high waves, causing catastrophic flooding.

8. Vulnerability to tsunami. Although not within the geologically active zone of the Pacific Ocean, the very low elevation of most of country’s land mass makes it susceptible to tsunamis originating from geologically active regions. [27] In [NAME] ([NAME]) at [17], the Tribunal observed that there are food security challenges as the poor soil quality and lack of irrigation make it difficult to grow food, meaning the population needs to rely more on imported food which is susceptible to price shocks. [28] Given the appellant has a [NAME], it is relevant to also consider country information on children’s education. The Tribunal reviewed the education system in [NAME] in Tamatoa [2023] NZIPT 506015–016, stating: [62] As concerns the education sector in [NAME], the government provides free primary and secondary education for all from years 1 through to 13; see [the [COMPANY] Association Project Appraisal Document on a Proposed Grant in the Amount of SDR 10.3 Million (US$14 Million Equivalent) to [NAME] for a [NAME], Report No PAD3593 (14 May 2020) (the [COMPANY] report)], p1. The [COMPANY] reports that the key challenges facing the education sector in [NAME] concern the quality of education and low literacy; dropouts at the secondary level; continuous professional development challenges; a lack of operational policies in several areas essential to guide teaching and learning; and teacher and student absenteeism. The [COMPANY] also reported that child development and school readiness was a concern. [63] The Pacific Islands Literacy and Numeracy Assessment (PILNA) 2018 data conveys that only 32 per cent of grade 4 students met or exceeded proficiency levels for English literacy (significantly lower than the 57 per cent for the [NAME] island states (SIS) subregion). Grade 6 results were also low at 47 per cent achieving proficiency as against 63 per cent for the SIS subregion. Poor outcomes in the early grades also result in low pass rates in later examinations; see [COMPANY] report, pp2–4. Prospects for the appellant on a return to [NAME] [29] The appellant states he has never been employed in [NAME], and that he came to New Zealand in 2019 to work because of the low rate of employment in [NAME]. His father, sister and her husband remain living in Vaitupu, where the appellant spent his childhood and where he lived between August 2022 and

8 July 2023. It is assumed that if he returned to [NAME] the appellant would go there. [30] The Tribunal acknowledges country information demonstrates there is a high rate of unemployment in [NAME] and that the appellant is highly likely to be worse off materially in [NAME] than in New Zealand. It is accepted that the appellant would have to survive through subsistence and perhaps remittances from his New Zealand family. In [NAME] v Chief Executive of Department of [NAME] [1995] NZAR 509 (HC) at 529–530 the High Court noted that: Mere economic betterment — the fact a person can live more comfortably in New Zealand than elsewhere — perhaps with employment instead of unemployment — is not the type of humanitarian consideration in contemplation in the statute. [31] [ADDRESS] went on to observe that the assessment of economic harm as a potential humanitarian circumstance is contextual; while poverty, of itself, may not meet the requisite statutory threshold, “[p]overty, starvation, and disease might do so”, as such would have an element of physical or emotional harm. [32] The appellant’s circumstances in [NAME], while challenging, would not be exceptional compared to those of the general population there. As found in Limoni, the hardships the appellant would likely face in [NAME] are shared by many. The appellant has not demonstrated that he would, on a return there, be unable to resume living a similar sort of life to the one he left in 2019 or 2022 and he has not demonstrated that his past living conditions were well outside the normal run of circumstances for citizens of [NAME]. Family separation [33] However, if the appellant were unable to remain in New Zealand, the appellant and his [NAME] family would face the prospect of being permanently separated. The appellant’s wife is a [NAME] and Immigration New Zealand records indicate she has never departed from New Zealand and does not hold citizenship in any other country. [34] Their daughter is also a [NAME]. It may be possible for the appellant’s wife and daughter to obtain visas to enter [NAME], however, they were born here, the wife’s family is here and the wife cannot reasonably be expected to travel to [NAME] with her [NAME] where there is uncertainty around housing, healthcare and income. It is noted that Vaitupu, the island the appellant is likely to return to, is eight to 12 hours boat ride from Funafuti and has limited

9 facilities. The Tribunal accepts the opportunities for the wife and daughter there, in terms of employment, education, accommodation and health, are worse than in New Zealand. Therefore, if the appellant is unable to remain here, the family would almost inevitably face being permanently separated. Best interests of the appellant’s daughter [35] Article 3(1) of the 1989 Convention on the Rights of the Child provides that, in all actions concerning children, the best interests of those children shall be a primary consideration. [36] The appellant’s daughter is approximately 20 months old and is a [NAME]. She has only ever lived in New Zealand and has been in the constant care of her parents (and maternal grandmother) since birth. [37] With respect to the known country conditions in [NAME], and the settled and stable existence the daughter has here, the Tribunal finds that the daughter’s best interests are served by remaining in New Zealand and by having her father remain physically present in her life here. Conclusion on exceptional humanitarian circumstances [38] The appellant’s father and sister remain on Vaitupu where the appellant spent his childhood. He has not demonstrated that, if required to return to [NAME], he would face a level of hardship that for himself would constitute an exceptional humanitarian circumstance. [39] However, the appellant is married to a [NAME], and together they have a [NAME] who has been in the constant care of her parents since her birth here. The Tribunal accepts that if the appellant is deported his [NAME] wife and child will likely remain here, due to the wife’s family ties, her lack of familiarity with [NAME], and the environmental and socio-economic challenges that exist in [NAME]. The Tribunal finds that, given the [NAME] daughter has been in the constant care of her parents since birth, her best interests are served by having her father remain physically present in her life. [40] Weighing these matters, the Tribunal is satisfied that the deportation of the appellant would give rise to exceptional circumstances of a humanitarian nature.

10 Whether it would be Unjust or Unduly Harsh for the Appellant to be Deported [41] Whether deportation would be unjust or unduly harsh must be assessed in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences of deportation: [NAME] v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248, at [9]. [42] The appellant is liable for deportation because he became unlawfully present in New Zealand following the expiry of his partnership-based visitor visa on 26 July 2025. It is unclear why no further visa application was made to enable him to remain here lawfully with his family. To maintain the integrity of New Zealand’s immigration framework, it is imperative that individuals adhere to their visa conditions. By remaining here after the expiry of his visa, the appellant breached those conditions. [43] As to the consequences of deportation, they would be significant for the appellant and his [NAME] family. His wife and daughter are New Zealand citizens and cannot be expected to relocate to [NAME]. As a consequence, if the appellant is not permitted to remain here, the family would likely face permanent separation. The daughter has been in the constant care of both her parents since birth, and it is undoubtedly in her best interests for her father to remain physically present in her life. [44] Weighing the exceptional circumstances of a humanitarian nature that have been found to exist in this case, and the effect the appellant’s deportation would have on himself and his [NAME] family, against the appellant’s unlawfulness due to his failure to depart New Zealand after his last visa expired, the Tribunal finds that the appellant’s deportation would be unjust or unduly harsh. Public Interest [45] Where the Tribunal has determined that there are exceptional humanitarian circumstances which would make it unjust or unduly harsh for the appellant to be deported, it must also be satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand. This involves the weighing of those factors which would make it in the public interest for the appellant to remain against those which make it in the public interest that he leaves: [NAME] v Chief Executive of Department of [NAME] ([NAME], CIV-2004-485-102, 30 November 2004) at [41].

11 [46] During its assessment conducted on 26 July 2024, Immigration New Zealand was satisfied the appellant met the health requirements for a partnership-based visitor visa. Since then, the appellant has stated (2 December 2025) that he does not have any health conditions. The appellant has provided a clear police certificate from [NAME] (22 January 2024) and the Tribunal has obtained a New Zealand conviction history check (3 April 2026) which is also clear. The Tribunal is therefore satisfied the appellant does not have any health or character concerns. [47] Article 23(1) of the International Covenant on Civil and Political Rights provides, “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. The Tribunal considers it is in the public interest to protect and maintain the family unit and for the appellant to be able to provide financial and emotional support to his wife and child who are both New Zealand citizens. [48] Against the above factors which make it in the public interest for the appellant to remain, the Tribunal weighs the public interest in maintaining the integrity of the [NAME]. Temporary visa holders are expected to depart New Zealand prior to the expiry of their visas and not to remain here unlawfully. [49] The Tribunal is satisfied that the public interest in maintaining the appellant’s family unit is significant and it would not be contrary to the public interest to allow the appellant to remain in New Zealand on a permanent [APPELLANT]. DETERMINATION [50] For the reasons given, the Tribunal finds that there are exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for the appellant to be deported from New Zealand. [51] The Tribunal also finds that it would not in all the circumstances be contrary to the public interest for him to remain in New Zealand. Order for Grant of a Visa [52] Pursuant to section 210(1)(a) of the Act, the Tribunal orders that the appellant be granted a resident visa.

12 Certified to be the Research Copy released for publication.

[NAME] Member Order for the Cancellation of Deportation Liability [53] Pursuant to section 211(1) of the Act, the appellant’s liability for deportation is cancelled. He is entitled to remain in New Zealand. [54] The appeal is allowed on the above terms. “[NAME]” [NAME] Member