Immigration & Protection Tribunal Allows Humanitarian Deportation Appeal

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 507305 [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] 23 April 2026

__________________________________________________________________ DEPORTATION (NON-RESIDENT)

DECISION __________________________________________________________________ [1] This is a humanitarian appeal by the appellant, a [NAME], against her liability for deportation which arose when she became unlawfully present in New Zealand after the expiry of her work visa. THE ISSUE [2] The issue on appeal is whether 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. [3] For the reasons that follow, the Tribunal allows the appeal and orders that the appellant be granted a 12-month work visa.

2

BACKGROUND [4] The appellant is a [NAME]. She first arrived in New Zealand in May 2011 as the holder of a one-[NAME] work visa under the [NAME] Scheme. [5] In July 2011, she met and began dating her partner, now 51 years old, who is a New Zealand citizen. In October 2011, they moved in together. [6] In April 2012, the appellant returned to [NAME] [NAME]. In March 2013, the appellant arrived in New Zealand as the holder of a visitor visa and began living with her partner again. In August 2013, the couple became engaged. [7] In August 2014, their first son was born. In November 2023, their second son was born. Both children are New Zealand citizens. [8] Since arriving in New Zealand in March 2013, the appellant has held a series of visitor and work visas. In December 2019, the appellant’s work visa expired and she was unlawfully present in New Zealand until November 2023 when the Minister granted her a work visa under section 61 of the Act. [9] In May 2024, Immigration New Zealand granted the appellant a further work visa on the basis of her partnership. On 18 July 2025, Immigration New Zealand received the appellant’s application for residence under the Family (Partnership) category, however, because her work visa expired on 19 July 2025 the appellant did not hold a valid visa and her application for residence has been placed on hold. 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— (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.

3 [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: Ye 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 Ye, 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 submissions received by the Tribunal on 22 September 2025 and can be summarised as follows: (a) The appellant is in a stable long-term relationship with her New Zealand citizen partner and together they have two sons (aged two and 11 years old). The family are well-settled in New Zealand. (b) The partner and [NAME] son have only ever visited [NAME] [NAME] to see family. Neither the partner nor the children speak Korean and cannot realistically relocate to live in [NAME] [NAME]. (c) The appellant and her partner have experienced financial difficulties and did not have enough savings to lodge the appellant’s application for residency until July 2025. As a result, the application has been placed on hold as the appellant’s last visa expired on 19 July 2025. (d) The appellant seeks the grant of a temporary visa to allow for her residency application lodged in July 2025 to be processed.

4 Materials and Documents [14] In support of her appeal, the appellant provides the following documents: (a) Letters (received 22 September 2025) from the appellant and her partner setting out their financial situation and details of the family’s settlement in New Zealand. (b) The birth certificates of their two sons which record that they were born here and are New Zealand citizens. (c) Letters (dated November 2018) provided in support of previous applications from family members and friends stating the couple are in a genuine and stable partnership. (d) Screenshots of messages (which are illegible) and family photographs dated from 2012 showing the appellant spending time with her partner and their two sons. (e) A record (24 March 2025) of a bond paid for a rental property naming the appellant and her partner as the sole tenants. (f) A timeline of the couple’s relationship. (g) A copy of the appellant’s application for residency lodged 17 July 2025. 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 her temporary and resident 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”: [NAME] v Minister of Immigration, at [34].

5 Circumstances in New Zealand [17] Since first arriving here in 2011, the appellant has lived in New Zealand almost continuously. The only significant period away was when she returned to [NAME] [NAME] in 2012 for slightly less than one [NAME]. [18] The appellant retuned to New Zealand in 2013 and held a series of visitor and work visas. In December 2019, she became unlawfully present in New Zealand following the expiry of her work visa. This was not rectified until November 2023 when the Minister of Immigration granted her a work visa under section 61 of the Act. Although not addressed directly in submissions, the Tribunal notes the partner’s evidence that the bar and restaurant he was working in closed in 2020 or 2021, and the couple suffered financial difficulties which resulted in them living with family members. The Tribunal observes that in the period 2020 to 2022, the COVID-19 pandemic caused unprecedented global disruption, causing profound upheaval for many families in New Zealand and that may have impacted the appellant’s ability to apply for a new visa. [19] The appellant has been in a committed relationship with her New Zealand citizen partner since they met 15 years ago. They are engaged, live together and have had two children together. The partner previously worked in hospitality, but as at August 2025, he was unemployed. He states (22 September 2025) he currently receives a benefit. Best interests of the children [20] The couple’s children are now aged 11 years and two years old. [NAME] is enrolled in school, and the youngest in early education. [NAME] participates in clubs, sports and will have established friendships. [21] 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. Given the settled and stable life the appellant’s sons have here, the Tribunal finds that their best interests are served by remaining in New Zealand and by having their mother remain physically present in their lives.

6 Pathway to residency in New Zealand [22] The appellant’s application for a residence visa, sought on the basis of her partnership, was lodged on 17 July 2025 at 10:11pm. It is recorded as accepted by Immigration New Zealand on 18 July 2025. The appellant’s previous work visa expired on 19 July 2025. Because she is now unlawfully in New Zealand and liable for deportation, the processing of her application for a residence visa has been suspended pursuant to section 169(3) of the Act. [23] The appellant’s partner states the application for residency was not lodged sooner as the couple struggled to save the fee required upon lodgement. The partner states that they had been saving to make an application, but when they learned the fee for a residency application had increased from 1 October 2024, they required further time to save the necessary amount. The Tribunal notes that in October 2024 the fee for a partnership residence application increased from $2,750 to $5,360. [24] The Tribunal observes the appellant’s application for residency has not been considered by Immigration New Zealand, and therefore it has not made findings as to whether the appellant meets the instructions for residence. The evidence before the Tribunal - notably the duration and stability of the couple’s partnership and that they have two New Zealand citizen children - highlights several positive factors to be considered in the application. While making those observations, the Tribunal notes it is entirely a matter for Immigration New Zealand to determine whether the appellant’s application for residence is successful. Circumstances in [NAME] [NAME] [25] The appellant’s parents, aged in their 60s, remain in [NAME] [NAME]. She does not have any siblings. [26] The appellant returned to [NAME] [NAME] for eleven months between April 2012 and March 2013, and the couple travelled to [NAME] [NAME] for two months with their first son in 2015. They state they visited to introduce their son to the appellant’s family there.

7 [27] The partner states that neither he, nor their sons, speak Korean and, at age 51, he cannot realistically relocate to [NAME] [NAME]. He states his sons would experience significant upheaval if they relocated. It is also submitted that, as the appellant has been out of the workforce in [NAME] [NAME] for many years it would be difficult for her to find work there. [28] The Tribunal accepts that, if the appellant were unable to remain in New Zealand, she and her family would face the prospect of being permanently separated. The appellant’s partner and their children are all New Zealand citizens and, while it may be possible for them to obtain visas to enter [NAME] [NAME], they do not speak the language and there is uncertainty around the appellant’s (or her partner’s) ability to gain employment there. Conclusion on exceptional humanitarian circumstances [29] The High Court has held that the stringent statutory test of “exceptional circumstances of a humanitarian nature” cannot be equated with “compassionate factors”, circumstances that are more than simply “routine”, or “genuinely concerning circumstances”. The High Court has also noted that there is a “high threshold” for making a finding of exceptional circumstances of a humanitarian nature: see Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765 at [45]. [30] The Tribunal finds the appellant has maintained a stable, 15-[NAME] partnership with her New Zealand citizen partner. The couple’s children are New Zealand citizens who are settled in their community and it is in their best interests that the appellant remains physically present in their lives. While the appellant’s pending residence application is yet to be determined, it appears to have some prospects of success. Furthermore, although the appellant retains familial ties to [NAME] [NAME], relocation would likely result in the permanent separation of her from her immediate family unit in New Zealand.

Accordingly, the Tribunal finds that these factors, taken cumulatively, constitute exceptional circumstances of a humanitarian nature. Whether it would be Unjust or Unduly Harsh for the Appellant to be Deported [31] 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].

8 [32] The appellant is liable for deportation because she became unlawfully present in New Zealand following the expiry of her partnership-based work visa on 19 July 2025. The appellant had made an application for residence, however it was received only one day prior to her work visa expiring. To maintain the integrity of New Zealand’s immigration framework, individuals must adhere to their visa conditions. By remaining here after the expiry of her visa, the appellant breached those conditions. However, given her circumstances and the fact that departing prior to the expiry of her visa would have separated her from her family, her actions in remaining here do not represent a significant affront to the integrity of the [NAME]. [33] As to the consequences of deportation, they would be significant for the appellant and her young family. Her partner and sons are New Zealand citizens and would be unlikely to relocate to [NAME] [NAME]. As a consequence, if the appellant is not permitted to remain here, the family would likely face separation. The children have been in the constant care of both their parents since birth, and it is in their best interests for their mother to remain physically present with them. [34] 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 herself and her young family, against the appellant’s unlawfulness due to her failure to depart New Zealand after her last visa expired, the Tribunal finds that the appellant’s deportation would be unjust or unduly harsh. Public Interest [35] 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] (HC Auckland, CIV-2004-485-102, 30 November 2004) at [41]. [36] Immigration New Zealand obtained a clear conviction history check (19 August 2025) and the Tribunal has obtained an updated conviction history check (16 April 2026) which remains clear. The Tribunal is therefore satisfied the appellant does not have any character concerns. In her application for residence lodged in July 2025, the appellant does not declare any health issues, although

9 the Tribunal notes that that application has not yet been determined, therefore, no findings have been made as to the appellant’s health. [37] 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 remain with her partner and children who are New Zealand citizens. [38] 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. [39] Ultimately, 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 her to remain in New Zealand. DETERMINATION [40] 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. [41] The Tribunal also finds that it would not in all the circumstances be contrary to the public interest for her to remain in New Zealand on a temporary basis. Order for Grant of a Visa [42] Pursuant to section 210(1)(b) of the Act, the Tribunal orders that the appellant be granted a work visa for a period of 12 months to allow the appellant to remain lawfully in New Zealand while her application for a resident visa is determined. This is the maximum period for a temporary visa ordered by the Tribunal and should be sufficient time for the appellant’s resident visa application to be resolved.

10 [43] The appeal is allowed on the above terms.

“[NAME]” [NAME] Member