Immigration Rejection Upheld But Exception Recommended Due To Special Circumstances

OUTCOME: Allowed in Part

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207302 [NAME], [NAME]

Appellant: [redacted]

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

Before: [NAME] (Member)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 26 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 64-[NAME] whose application for residence under the Family ([APPELLANT]) category was declined by Immigration New Zealand. THE ISSUE [2] Immigration New Zealand declined the appellant’s residence application because her son and daughter-in-law, the [NAME] of her application, did not meet the minimum income requirements for the Family ([APPELLANT]) category. [3] The principal issues for the Tribunal are whether Immigration New Zealand was correct to decline the application for residence and, if so, whether the appellant has special circumstances, arising from the circumstances of the appellant and her family in New Zealand, such as to warrant consideration by the Minister of Immigration of an exception to residence instructions. [4] For the reasons that follow, the Tribunal finds that Immigration New Zealand correctly declined the application, but that the appellant does have special

2 circumstances such as to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

BACKGROUND [5] The appellant was born in and is a citizen of the Philippines. She lives in the Philippines with her husband (now 73 years old), and they have a daughter and two sons. [6] In 2012, the daughter (now 41 years old) and her husband first came to New Zealand as the holders of work visas. In June 2013, they were granted resident visas and, later, permanent resident visas. In March 2022, the daughter and her husband emigrated to Australia. [7] In 2014, the appellant’s [NAME] (now 39 years old) and his wife arrived in New Zealand as temporary visa holders. They became residents of New Zealand, and, in 2022, citizens. The couple have a child who was born in New Zealand in 2017 and is a citizen of New Zealand. [8] The appellant’s younger son (38 years old) has been in New Zealand since November 2015. He is now a resident of New Zealand. The younger son has a son (the appellant’s [NAME]), who was born in the Philippines in 2009. This child was raised by the appellant in the Philippines. He visited his father in New Zealand in 2015 and, in December 2023, entered New Zealand as the holder of a resident visa. He lives with his father. [9] Since 2013, the appellant has visited New Zealand five times as the holder of visitor visas, most recently from December 2023 to August 2024. Expression of Interest [10] On 19 August 2016, the appellant lodged an expression of interest for residence under tier 1 of the Family ([APPELLANT]) category of residence instructions. The appellant did not include her husband in her application. [11] There followed processing delays, among other things, arising from the category being suspended and the COVID-19 pandemic.

3 [12] On 8 August 2023, Immigration New Zealand selected to appellant’s EOI and, on 28 August 2023, it invited the appellant to apply for residence under the Family ([APPELLANT]) category within a period of four months. Residence Application [13] On 27 December 2023, the appellant applied for residence under the Family ([APPELLANT]) category. [14] Under the category, an appellant must nominate an [NAME] (or an [NAME] and that child’s partner) as [NAME] with incomes exceeding minimum income thresholds for any two 12-month periods that did not overlap in the three years prior to the EOI being selected (F4.35.1.b.ii and F4.35.5), effective 1 May 2023). Although Immigration New Zealand referred to instructions dated 27 February 2023, this made no practical difference to the decision. The appellant nominated [NAME] and his partner as her [NAME]. [15] On 14 March, 29 July and 22 November 2024, Immigration New Zealand wrote to the appellant with a concern that the [NAME]’ incomes only exceeded the minimum income thresholds for one (not two) of the three years prior to the selection of the EOI, as follows:

[NAME]’ incomes Threshold incomes [NAME] from 1 April 2021 $112,436 $115,481 [NAME] from 1 April 2022 $115,921 $115,481 [16] The appellant’s counsel responded to this concern on 9 April 2024 and 15 August 2024. On 6 December 2024, counsel requested an exception to the income requirements on the basis that: (a) The appellant’s original [NAME] (her daughter and the daughter’s husband), at the time of her expression of interest (19 August 2016), had incomes which, together, exceeded the original income thresholds. However, by the time of the invitation to apply, in August 2023, they had moved to Australia and could no longer be [NAME]. (b) The incomes of the appellant’s new [NAME] ([NAME] and his wife) were adversely affected during the COVID-19 pandemic.

4 (c) The incomes of the son and his wife have been adversely affected by the demands of caring for their son, who, in 2020, was diagnosed with autism spectrum disorder (ASD) and, in December 2023, with attention deficit hyperactivity disorder (ADHD). (d) If granted residence, the appellant could help her son and his wife to support their son (the appellant’s [NAME]). (e) Although instructions do not allow for a third [NAME], the appellant’s younger son was granted residence in July 2023 and is employed, earning $65,000 per [NAME]. Immigration New Zealand’s Decision [17] On 15 January 2025, Immigration New Zealand declined the appellant’s application for residence because her [NAME]’ joint incomes did not meet the income thresholds for two 12-month periods within three years prior to the selection of her expression of interest (F4.35.5). STATUTORY GROUNDS [18] 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. [19] 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.

5 THE APPELLANT’S CASE [20] On 25 February 2025, the appellant lodged this appeal on the ground that her circumstances are special such that an exception to the residence instructions should be considered. [21] The appellant’s submissions as to special circumstances are set out at [35], below. ASSESSMENT [22] 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. [23] 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. Further documents provided on appeal [24] In addition to documents already on the Immigration New Zealand file, the appellant provides: (a) Statements (18 March 2025) by the appellant, her daughter, sons and a [NAME]. (b) Inland Revenue Department statements of the incomes for the [NAME] to 27 February 2025 of [NAME] ($77,875) and his wife ($61,398). [25] In assessing the correctness of the decision, the Tribunal cannot consider this information because it did not exist when Immigration New Zealand made its decision, or, if it did exist, it was not relevant to making that decision (section 189(3)(a)(i)).

6 [26] However, the Tribunal may consider further information provided on appeal where necessary to determine whether the appellant has special circumstances (section 189(3)(b)). This assessment is set out below at [36]–[59]. Whether the Decision is Correct [27] The application was made on 27 December 2023 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because the incomes of the appellant’s [NAME] did not meet the income thresholds for two 12-month periods within three years prior to the selection of her expression of interest. [28] Under F4.35 (effective 1 May 2023), a [NAME] or joint [NAME] must meet minimum income requirements for any two 12-month periods that do not overlap, in the three years before the invitation to apply for residence — see F4.35.1.b.ii and F4.35.5: F4.35.5 Minimum income requirement for [NAME] a. The [NAME] or joint [NAME] must: i. have total income that meets the minimum income threshold set out at F4.35.5.1; and ii. meet that income threshold for two 12-month periods within the 3 years prior to their EOI being selected (as set out at F4.35.5.1); and iii. demonstrate that income through the evidential requirements set out at (F4.35.5.10). … c. The two 12-month periods may not overlap. … [29] The minimum income thresholds for [NAME] under the Family ([APPELLANT]) category are set out at F4.35.5.1.a (effective 1 May 2023): F4.35.5.1 Minimum income thresholds a. The minimum income threshold for [NAME] under the [APPELLANT] is based on the following and is set out in the tables at (b) and (c) below: i. 1.5 times the median income if sponsoring a single [APPELLANT]; and ii. an additional 0.5 times the median income for each additional [APPELLANT] sponsored; and iii. an additional 0.5 times the median income (combined) if two people are acting as [NAME]. …

7 [30] The minimum income thresholds are stated at F4.35.5.1.b and refer to the end of each 12-month period for which the [NAME] provides evidence (F4.35.5.1.d, effective 1 May 2023). The appellant’s expression of interest was selected on 8 August 2023. She therefore had to establish that her joint [NAME]’ incomes exceeded the following thresholds in any two 12-month periods in the three years to 8 August 2023: 1 May 2023 onwards $ 123,385.60 1 January 2022 to 30 April 2023

115,481.60 1 January 2021 to 31 December 2021

112,320.00 [31] The appellant’s joint [NAME]’ incomes from 1 April 2022 to 31 March 2023 ($115,921.34) exceeded the threshold ($115,481.60). However, the [NAME]’ income in any other 12-month period in the three years to 8 August 2023 not overlapping with that period did not exceed the income thresholds. The Tribunal therefore finds that Immigration New Zealand’s decision to decline the appellant’s application for residence was correct. Whether there are Special Circumstances [32] 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. [33] 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. [34] 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. Submissions on special circumstances [35] Counsel submits (21 March 2025) that there are special circumstances in the appellant’s case:

8 (a) Granting residence to the appellant would promote the interests of family unity. (b) [NAME]’s son (the appellant’s [NAME]) requires extra care, as confirmed by his diagnoses of ASD in 2020 (when three years old) and ADHD in 2023. If granted residence, the appellant could provide care for her [NAME], which would alleviate the burden for his care on her son and his wife. (c) The combined income of [NAME] and wife was only $3,045 short of the income threshold in the [NAME] from 1 April 2021. At that time, the wife had temporarily reduced her work hours and income to care for her son (the appellant’s [NAME]). The wife has now increased her work hours and income, and the appellant’s younger son is employed (earning $65,000 per [NAME]) and can contribute to the appellant’s financial support. (d) The appellant originally intended her daughter and son-in-law to [NAME] her application for residence as they had sufficient income when she submitted her expression of interest (August 2016). However, they could not [NAME] her because they had moved to Australia during the prolonged seven-[NAME] delay until the invitation to apply (August 2023). Personal and family circumstances [36] The appellant (now 64 years old) and her husband (73 years old) are citizens and residents of the Philippines. The appellant’s residence application did not include her husband. Immigration New Zealand therefore did not assess whether they were living together in a genuine and stable partnership. It is not known why the husband was excluded. [37] In her temporary visa applications in 2019, the appellant disclosed that she was not employed and that she had four siblings living in the Philippines. The applications stated that her husband’s parents (now very old, if still alive) lived in the United States of America and that he had one sibling in the Philippines and four siblings in other countries. [38] The appellant and her husband have three children, who were born in the Philippines. Their daughter (41 years old) lived in New Zealand from 2012. In

9 2022, she and her husband migrated to Australia. [NAME] (39 years old) has been in New Zealand since 2014, where he lives with his wife and their child (now nine years old). They are citizens of New Zealand. The appellant’s younger son (38 years old) and his son (17 years old) (the appellant’s [NAME]) have lived in New Zealand since 2015. They are residents of New Zealand. [39] The appellant and her husband have visited New Zealand frequently as the holders of visitor visas. They first came here in 2013 for 47 days. The appellant returned in 2015 (43 days) and 2016 (86 days). She visited in February 2019. Her husband arrived in May 2019, and they left in January 2020. The husband visited New Zealand from June 2023 to March 2024, which overlapped with the appellant’s visit from December 2023 to August 2024. [40] Apart from their visits to this country and family here, there is no evidence that the appellant has any other connections or contributions to New Zealand. Best interests of the children [41] 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]. However, 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 [NAME]. The Convention defines “child” as every human being below the age of 18 years, which, in the appellant’s case, is her two grandsons. [42] The best interests of the children must be considered having regard to their particular circumstances and the nature and quality of the relationships which they have in New Zealand. – [NAME] [43] [NAME]’s son is now nine years old. In June 2020, a consultant paediatrician diagnosed [NAME] (then three years, two months old) with ASD and global developmental delay: [The appellant] visiting from overseas has been staying with family over the Covid19 lockdown. [The appellant] and mother have concerns about [[NAME]’s] overall developmental functioning, as he is different to his peers. He continues to line up the toys; is non-verbal with repeated non-meaningful

10 vocalisations. His non-verbal communication has not improved, and he continues to tug parents arm but unable to point. … [[NAME]] is not toilet trained and has not shown any readiness towards toilet training. He generally sleeps well during the night. [[NAME]] has not learned to feed himself as yet. [44] In November 2023, a paediatric registrar examined [NAME] (by then six years, seven months old), confirmed the previous diagnosis and added the condition ADHD. The report described [NAME]’s behaviour: [[NAME]] attends [a named primary school] five days a week from 0900 to 1200 with a teacher aide supporting him at all times. At school it is difficult to get him to follow directions and participate in activities such as colouring and drawing. [[NAME]] is often running from place to place. It is very hard to get him to complete a task at school. It is difficult for him to stay seated either on the chair or on the mat. He struggles to engage in children’s games that involve taking turns, he will reach for the object he wants immediately. At home, [[NAME]] is also very active. [His father] describes him like a motor that is constantly running. He will change from activity to activity very quickly. If something is very interesting he may stick to that activity for 2 to 5 minutes, but that is the maximum. … It is difficult to get [[NAME]] to sit down at home, even at meal times he is often wandering around on his feet while being fed by his parents. They have started toilet training, however [[NAME]] cannot sit still on the potty for long so it has been a difficult process and he remains in nappies. He normally understands what is dangerous and is careful going down stairs and on heights, however when new things capture his attention he can be impulsive such as running out into the street. [45] There had been some development in [NAME]’s speech: [[NAME]] was non-verbal and in the last [NAME] has started to speak singular words such as ‘milk, chips, tomato, stop, go’. Recently he has also started to speak short phrases such as ‘pick up balls, carry the balls, close your eyes’. [His parents] feel that his comprehension is good and actively working to improve his vocabulary. He is slowly learning more words that are not part of his everyday routine such as ‘mountain’. [46] [NAME] needs a great deal of help with daily activities: [[NAME]] does not feed himself, he is fed by his parents at meal times. He struggles to dress himself, he cannot put on or [NAME] off tops and can only pull his pants up if his feet are already in the pants. He does not do up his open buttons. He can put his toothbrush in his mouth, but needs help with brushing his teeth. [47] A letter (18 December 2023) from the Ministry of Education states that [NAME] has high level of Ongoing Resource Scheme (ORS) support, described as “high needs level under Criterion 5 – Learning” and that he can “remain in ORS for all of his school years”. [48] Although the latest reports are now nearly three years old, the Tribunal has no doubt that [NAME]’s care is exceptionally challenging. As stated in the paediatric reports and the high level of ORS support, [NAME] needs a high level of supervision and extra assistance to perform tasks that children of the

11 same age can perform by themselves. [NAME]’s parents need all the help they can get with [NAME]’s care, which has included from the appellant, for example, during 2020. There is no doubt that it is in [NAME]’s best interests for the appellant to remain in New Zealand. – [NAME] [49] The parents of [NAME] (the younger son’s child) separated when he was a young child, and he was then raised by in the Philippines by the appellant. In December 2023, [NAME] settled in New Zealand as the holder of a resident visa. [NAME], now 17 years old, would be more independent than a young child, the Tribunal acknowledges that he has a close connection to the appellant. [NAME] states (18 March 2025): I can still remember that the relationship of [NAME] and mother … was always rocky. There were quarrels that [led] [NAME] to leave us for weeks. We were living with [the appellant], at the family house of [NAME]. [NAME] was 21 years old then and working at a [NAME], then he decided to be a seaman and took a two-[NAME] contract. Maybe that contributed to the widening gaps between my parents and when [NAME] decided to come to New Zealand to study, that aggravated their situation and eventually totally separated. They both left me with [the appellant] who at the time was also being left alone. [NAME] [the appellant’s husband] was a seaman and away to international seas yearly. [NAME] … was already working in New Zealand, and [[NAME]] also joined her years later. [50] The Tribunal finds that it would be in the best interests of [NAME] for the appellant to remain in New Zealand given their close bond arising from the appellant’s care for him in his childhood. Family unity [51] The Tribunal 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”. Further, Article 10 of the 1966 International Covenant on Economic, Social and Cultural Rights provides that “the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society. [52] The Tribunal notes that the appellant has family in the Philippines, that is, her husband, siblings and one sibling of her husband. However, apart from her husband, the centre of the appellant’s family is in New Zealand (where her sons and grandsons live) and Australia (where her daughter lives). Currently, the

12 appellant and her husband can visit New Zealand with visitor visas. A resident visa would enable the appellant to remain longer or permanently in New Zealand. On balance, the interests of family unity would be served by granting residence to the appellant. Health, character, and English language requirements [53] Immigration New Zealand’s assessment of the appellant’s residence application (17 December 2024) noted that the appellant had an acceptable standard of health for the purposes of residence. Immigration New Zealand found that the appellant met the character requirements of instructions based on clear police certificates from the Philippines (12 September 2023) and New Zealand (11 January 2024). The assessment also found that the appellant met the requirements of instructions as to a minimum standard of English language based on an IELTS test result (25 November 2023). Failure to meet instructions under the Family ([APPELLANT]) category [54] The representative submits that the appellant would have had [NAME] with incomes meeting the minimum income thresholds if there had not been such a long delay since the expression of interest (August 2016) and the invitation to apply for residence (August 2023). During that time, the daughter and her husband went to Australia. The new [NAME] ([NAME] and his wife) were not eligible because their joint incomes were under the minimum income threshold in one of the two 12-month periods in the three years prior to the selection of the expression of interest. [55] The Tribunal acknowledges the long delay between the expression of interest and invitation to apply and that the appellant was forced to nominate [NAME] and his wife as [NAME]. The fact that the [NAME]’ incomes (like many other applicants under the Family ([APPELLANT]) category) did not meet the minimum income thresholds under instructions is by itself not unusual or out of the ordinary in the fact that they did not meet the policy requirements. The Tribunal notes, however, that the incomes of [NAME] and wife were only about $3,000 below the minimum income thresholds in one [NAME] prior to the selection of the appellant’s expression of interest in January 2023.

13 Discussion on special circumstances [56] The separation of the appellant from her family in New Zealand is a foreseeable consequence of their decisions to migrate here. A familial nexus to New Zealand is not, by itself, out of the ordinary for applicants under the Family ([APPELLANT]) category, who are required to have such a nexus. It is not uncommon for a [APPELLANT], when [NAME] and retired, to wish to join family in New Zealand. The appellant has family links to the Philippines through her husband and their siblings and she can maintain contact with her family in New Zealand by visits here on visitor visas. [57] This would be sufficient, in many cases, to find that there are no special circumstances. However, in the appellant’s case, it is out of the ordinary that her younger [NAME] has ASD, ADHD and development delays. [NAME]’s parents have little family support in New Zealand and granting residence to the appellant would allow her to provide significantly more support to them in their efforts to cope with the very high demands of [NAME]. [58] It is also out of the ordinary that the appellant has a particularly close bond to her [NAME]. She was effectively his only [APPELLANT] for many years before he came to New Zealand in 2023. [59] In this context, granting residence to the appellant would be in the best interests of the grandsons in New Zealand, consistent with Article 3(1) of the 1989 Convention on the Rights of the Child, and would promote New Zealand’s international obligations regarding family unity under Article 23(1) of the 1966 International Covenant on Civil and Political Rights, and Article 10 of the 1966 International Covenant on Economic, Social and Cultural Rights. Conclusion on special circumstances [60] Having regard to circumstances of the appellant and her family, 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 [61] 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. [62] Pursuant to section 190(5) of the Act, the Minister of Immigration: (a) is requested to consider whether a residence class visa should be granted, as an exception to residence instructions, to the appellant; and (b) may, if granting a resident visa, impose conditions on the visa in accordance with section 50 of the Act. [63] 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 [64] Pursuant to clause 19 of Schedule 2 of the Act, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant or her family members. “[NAME]” [NAME] Member