Immigration Tribunal Recommends Minister Review Special Circumstances for Residence Application

OUTCOME: Allowed in Part

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207493 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 ___________________________________________________________________ [APPELLANT] ___________________________________________________________________ [1] The appellant is a 36-year-old citizen of [NAME] whose application for [APPELLANT] under the [APPELLANT] ([NAME]: Straight to [APPELLANT]) category was declined by [NAME]. The application included her husband aged 41 years, and daughter aged 15 years, who are also citizens of [NAME]. THE ISSUE [2] [NAME] declined [NAME] [APPELLANT] application because her husband, who has end-stage kidney disease, did not have an acceptable standard of [NAME] and was not eligible for a medical waiver. The Tribunal finds that [NAME]’s decision was correct. [3] The principal issue for the Tribunal is whether the appellant and her family have special circumstances, arising from the husband’s ongoing need for life-saving dialysis treatment and the present unavailability of treatment in [NAME], such as to warrant consideration by the Minister of Immigration of an exception to [APPELLANT] instructions.

2 [4] For the reasons which follow, the Tribunal finds that there are special circumstances which warrant a recommendation that the Minister of Immigration consider an exception to instructions.

BACKGROUND [5] The appellant was born in [NAME]. Her daughter (from a former relationship) was born in [NAME] in 2010. In 2019, the appellant married her husband, who is a fellow [NAME] citizen. [6] The appellant worked in [NAME] as a medical officer for the Ministry of [NAME]. In 2019, [NAME] commenced study at the [COMPANY] in Fiji through a [NAME] scholarship. Family’s Immigration and [NAME] [7] In January 2020, the appellant arrived in New Zealand as the holder of a [NAME] scholarship [NAME] visa, to study a postgraduate specialist medical qualification at a university in New Zealand. One of the conditions of this visa type is that recipients are required to return to their home country for at least two years after the completion of their scholarship, to apply their new skills and knowledge in government, [COMPANY] or [NAME] (see immigration instruction U11). [8] The appellant held such [NAME] visas until July 2023, during which time she successfully completed her qualification. She has largely remained in New Zealand since her arrival in early 2020. [9] In late 2020, the appellant was diagnosed with breast cancer. (This was ultimately successfully treated.) [10] In January 2021, [NAME] (who had successfully completed his degree in Fiji), travelled to New Zealand as the holder of a critical purpose visitor visa, to support the appellant while she underwent surgery and treatment. The husband has remained in New Zealand since his arrival. [11] In mid-2021, the husband applied for a work visa as the partner of a scholarship [NAME], during which time it was revealed that he did not have an acceptable standard of [NAME]. Medical evidence confirmed that the husband required renal replacement therapy and was being assessed for peritoneal dialysis

3 and haemodialysis. In July 2021, the husband commenced dialysis. Ultimately, [NAME] granted the husband a work visa (and subsequent work visas) as an exception to instructions, valid for the duration of [NAME] [NAME] visa to July 2023. [12] In mid-2023, after completing her studies, the appellant sought a post-study work visa, and her husband a further work visa as her partner. [NAME] noted that, while the appellant would not ordinarily be entitled to the grant of a visa in the two years following completion of her scholarship (per U11), she had evidence that [NAME] (Ministry of Foreign Affairs and Trade) had approved an initial 12-month deferral of her scholarship bond period and approved her to apply for any temporary visa, given the compassionate circumstances of her husband and as his only family support in New Zealand. The appellant was advised that after a year, [NAME] would review the situation. In respect of the husband, [NAME] had released him entirely from the bond requirements that applied to his status as the partner of a scholarship-holder (see WF4.5) so that he could continue the treatment he required in New Zealand, and it gave written approval for him to apply for any temporary visa. [13] In September 2023, [NAME] granted the appellant a 12-month post-study work visa as an exception to instructions. [14] However, in November 2023, [NAME] declined the husband’s work visa application because he was not of an acceptable standard of [NAME]. The husband then became unlawfully present and lodged a successful appeal against his liability for deportation, which saw the Tribunal (differently constituted) order the grant of a 12-month work visa, in early 2024. [15] In that decision, the Tribunal found the husband’s dependency on life- sustaining dialysis and inevitable death if returned to [NAME] constituted exceptional humanitarian circumstances, and that his [NAME] predicament, of which he became aware only after his arrival in New Zealand, made it unjust or unduly harsh for him to be deported. Further, there was a public interest in, among other things, having the Minister of Immigration consider [NAME] predicament, given the wider issue of how New Zealand can most effectively assist [NAME] to respond to its pacific [NAME] needs, and the grant of a temporary visa would give the husband the opportunity to make a “section 61” request to the Minister, to continue his treatment in New Zealand.

4 [16] In August 2024, the appellant made an application for an [NAME] work visa, based on her employment as a senior medical officer with [NAME]. She provided evidence that [NAME] had granted her a further 12-month extension to the deferral of her scholarship requirements. [NAME] granted the appellant a five-year work visa, valid to October 2029. [17] In November 2024, [NAME] daughter arrived in New Zealand from [NAME], as the holder of a visitor visa. In March 2025, the daughter was granted a [NAME] visa as the dependent of a worker (the appellant), and this visa is valid to the same date as [NAME] visa, in October 2029. [18] Most recently, the husband has held a work visa as the partner of an [NAME] work visa holder. This visa, again granted as an exception to instructions, is valid to 11 July 2026. At the time of approving this visa, in mid-2025, [NAME] advised the husband that it was aware that [NAME] was making progress on having a functioning dialysis centre that was expected to open in late 2025. [APPELLANT] [19] On 27 February 2025, the appellant made an online application for [APPELLANT] under the [APPELLANT] ([NAME]: Straight to [APPELLANT]) category, based on her employment as a senior medical officer. The appellant included her husband and daughter in this application and declared that her husband was receiving dialysis. [20] She provided [NAME] with (among other documents) her signed acceptance of employment (23 April 2024) and evidence of her current New Zealand occupational registration, as well as copies of her and her husband’s university qualifications, and a letter (13 December 2024) from a renal registrar regarding the husband’s state of [NAME], progress and treatment. [NAME]’s Concerns Husband’s [NAME] [21] During March and April 2025, [NAME] advised the appellant that (among other things) her husband did not appear to be of an acceptable standard of [NAME] for [APPELLANT]. His end-stage kidney disease and his

5 requirement for a kidney transplant were both conditions deemed to impose significant costs on [COMPANY]. Further, because he was receiving dialysis treatment, he was not eligible for consideration of a medical waiver. [22] In response (22 April 2025), the appellant informed [NAME] that she was aware of the status of her husband’s [NAME], which would not improve unless a kidney transplant was undertaken. She was contributing to New Zealand’s healthcare costs through the taxes on her employment, and the family were managing some donations to renal care services. It would be unjust for the husband to return to [NAME], where dialysis was unavailable, and he would likely die within weeks. The appellant stated that although her husband was currently unemployed, he cared for their daughter while she was at work. He was a great support and was needed by their family in New Zealand. The appellant hoped that [NAME] would consider the family’s application regardless of the husband’s [NAME]. Appellant’s scholarship obligations [23] A further issue raised by [NAME] during the processing of the [APPELLANT] application was whether the appellant was eligible for the grant of a resident visa, given her [NAME] scholarship. The scholarship requirements mandated that she was unable to be granted a [APPELLANT] class visa in the two-year period following cessation of the scholarship (which was from 14 July 2023), unless [NAME] had expressly waived this requirement (per R5.105). [NAME]’s Decision [24] By letter dated 21 July 2025, [NAME] declined the application because [NAME] did not have an acceptable standard of [NAME] for a [APPELLANT] class visa and was unable to be granted a medical waiver (A4.10.a). [25] [NAME] also advised that the issue regarding [NAME] [NAME] scholarship remained outstanding. The [NAME] letter provided (26 May 2025) approved a further bond deferral to October 2029, to align with [NAME] work visa, but did not waive this requirement. While this issue was not relied on as a basis to decline the [APPELLANT] application, it would require resolution prior to the appellant making any further [APPELLANT] application.

6 STATUTORY GROUNDS [26] [NAME] 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 [APPELLANT] 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 [APPELLANT] instructions should be recommended. [27] The [APPELLANT] instructions referred to in section 187(4) are the Government [APPELLANT] instructions contained in [NAME]’s Operational Manual; see www.immigration.govt.nz. [NAME] [28] On 7 August 2025, the appellant lodged this appeal on the ground that her circumstances are special such that an exception to the [APPELLANT] instructions should be considered. [29] The appellant makes submissions in the appeal form, and counsel provides submissions of 7 August and 22 September 2025. In summary, it is submitted that the family’s circumstances are uncommon: the husband’s [NAME] condition and the significant costs that it imposes should be balanced against [NAME] valuable contribution through her employment in the [NAME] in New Zealand; a grant of [APPELLANT] would ensure that the family can remain together, given the uncertainty of the husband’s ability to remain in New Zealand; and the family will be assets to New Zealand. [30] In support of the appeal, in addition to documents already contained on [NAME] [NAME] file, the Tribunal was provided with the following documents: (a) A statement from the appellant (undated) in which she outlines her family’s personal and professional history.

7 (b) A letter (4 August 2025) from the Chief Executive Officer of [NAME] at the [NAME] of [NAME], confirming that haemodialysis services are not yet available in [NAME] and that kidney transplant services and follow-up care for transplant recipients is not available locally. (c) A letter (11 August 2025) from the husband’s local general practitioner, who supports him remaining in New Zealand on ethical grounds given the absence of haemodialysis in [NAME]; and a report (18 May 2026) from the husband’s renal physician, who outlines his current renal [NAME] status. (d) A letter (31 July 2025) from a clinical head of department at [NAME] confirming [NAME] position; evidence of [NAME] salary (April 2025); a letter of support (7 August 2025) from a consultant colleague; and a copy of an “expression of interest” for a role identical to that held by the appellant, in another region of New Zealand. (e) A letter (18 September 2025) from the daughter’s secondary school. (f) A letter (5 August 2025) from the secretary of the local religious organisation attended by the family. (g) A letter of support (4 August 2025) from the coordinator of a [COMPANY] in which the husband is actively involved. (h) Reference letters (12 and 18 August 2025) from two of the husband’s former employers in [NAME]. (i) Correspondence and accounts (February and March 2026) concerning payment of the husband’s renal treatment in New Zealand as a non-resident, and evidence of his outstanding account balance. (j) A statutory declaration (19 May 2026) from the husband. [31] The Tribunal cannot consider further information provided by an appellant that was not before [NAME] at the time that it made its decision to decline the application (section 189(1) of the Act). However, there is a relevant exception where, as in this case, the Tribunal considers that the further information

8 provided on appeal is necessary for its determination of whether the appellant has special circumstances (section 189(3)(b)). This assessment is set out below at [44]. ASSESSMENT [32] The Tribunal has considered the submissions and documents provided on appeal and the file provided by [NAME] in relation to [NAME] [APPELLANT] application, and [NAME]’s relevant electronic records for the family. [33] Although the appellant appeals only on the ground of having special circumstances, the Tribunal’s jurisdiction requires that it first assess whether [NAME]’s decision to decline the application was correct in terms of the applicable [APPELLANT] 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. Whether the Decision is Correct [34] The application was made on 27 February 2025 and the relevant criteria are those in [APPELLANT] instructions as at that time. [NAME] declined the application because [NAME] was not of an acceptable standard of [NAME] and was not entitled to the grant of a medical waiver. [NAME] not of an acceptable standard of [NAME] [35] To be granted [APPELLANT] under the [APPELLANT] ([NAME]: Straight to [APPELLANT]) category, all applicants must meet the [NAME] requirements for [APPELLANT]: SR4.5.a.i (effective 28 February 2024). This requires that they be of an acceptable standard of [NAME] or (if eligible) be granted a medical waiver: A4.10.a (effective 16 March 2024). An application for [APPELLANT] must be declined if any person included in the application is assessed as not having an acceptable standard of [NAME] and a medical waiver is not granted: A4.10.a. [36] Applicants are considered to have an acceptable standard of [NAME] if they are unlikely to impose significant costs or demands on [COMPANY]: A4.10.b.ii. The medical conditions listed in A4.10.1 are deemed to impose significant costs and/or demands on [COMPANY].

9 [37] Instruction A4.10.1 relevantly includes the following medical conditions: A4.10.1 Medical conditions deemed to impose significant costs and/or demands on New Zealand's [NAME] and/or education services … ● Requirement for organ transplants (with the exclusion of corneal grafts), or following organ transplant when immune suppression is required (with the exclusion of corneal grafts) ● Severe, chronic or progressive renal or hepatic disorders … [38] Where [NAME] is satisfied, on advice from a medical assessor, that an applicant has one of the listed conditions, the applicant will be assessed as not having an acceptable standard of [NAME]: A4.10.c. [39] It was not disputed that [NAME] did not have an acceptable standard of [NAME]. The medical evidence before [NAME] confirmed that he had end-stage kidney disease, secondary to presumed glomerulonephritis (inflammation of the kidneys filters), and was on the deceased donor kidney transplant list. He had two medical conditions listed at A4.10.1 that were deemed to impose significant costs or demands on [COMPANY]. [40] Further, the husband was not entitled to consideration of a medical waiver because he was undertaking dialysis treatment. He was caught by instruction A4.60.a.i (effective 16 March 2024), which provides: A4.60 Medical waivers (applicants for [APPELLANT] class visas) a. Applicants for [APPELLANT] class visas in New Zealand who are assessed as not having an acceptable standard of [NAME] and whose applications meet all other requirements for approval under the relevant Government [APPELLANT] instructions may be considered for the grant of a medical waiver unless they: i. require dialysis treatment, or an [NAME] medical assessor has indicated that they will require such treatment within a period of five years from the date of the medical assessment; or Conclusion on correctness [41] The Tribunal finds that [NAME]’s decision to decline [NAME] application for [APPELLANT] was correct. [NAME] was not of an acceptable standard of [NAME] and was not able to be considered for the

10 grant of a medical waiver (A4.10.a and A4.60.a.i), which meant the [APPELLANT] application was required to be declined (A4.10.a and SR4.5.a.i). Whether there are Special Circumstances [42] Where the Tribunal found the decision of [NAME] 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 [APPELLANT] instructions. [43] 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 [44] [NAME] is a 36-year-old citizen of [NAME]. She has a 15-year-old daughter who was born in Fiji (while the appellant was studying there in 2010) and is a citizen of [NAME]. [NAME] (the daughter’s [NAME]), whom she married in [NAME] in 2019, is also a [NAME] citizen. [45] The appellant declares that her father lives in Nauru, while her three siblings live in [NAME]. She has four half-siblings, all of whom are students and reside variously in the United States, Fiji and Nauru. The specifics of the husband’s family are not known, but the appellant states that he is the youngest son of his parents, who had five children, and he was raised in [NAME]. [46] Aside from a cousin of the husband who lives in a different region of New Zealand, it is not evident that the appellant and her husband have any current familial connections in this country. [47] The appellant has been living in New Zealand for just over six years, initially completing postgraduate university study in Y region and latterly (from early 2024) working at hospitals in Z region. Towards the end of her first year in New Zealand, she was diagnosed with breast cancer, which necessitated surgery and treatment, and from which she appears to have successfully recovered.

11 [48] [NAME] joined her in New Zealand just over four years ago, travelling here to support her through breast cancer treatment. However, just months after his arrival, he was diagnosed with end-stage renal failure and is receiving dialysis treatment. [49] [NAME] daughter joined the appellant and husband in New Zealand 18 months ago and is attending secondary school here. Family’s immigration history [50] The appellant and her family have previously travelled to New Zealand: the appellant made short visits in 2003–2004 and 2018; the husband in 2004, 2015 and 2016; and the daughter in 2018, and 2023–2024 for [NAME] graduation. [51] In January 2020, the appellant arrived in New Zealand as the holder of a [NAME] visa granted pursuant to [NAME] scholarship, to undertake postgraduate study. She held further [NAME] visas until mid-2023, following which time she successfully sought a 12-month post-study work visa. While the terms of [NAME] scholarship would ordinarily have seen her (and her husband) precluded from the grant of any visa in the two years following cessation of the scholarship (July 2023 to July 2025) and necessitated their return to [NAME], [NAME] had expressly deferred this requirement for 12 months given the compassionate circumstances of her husband. [52] In October 2024, a further [NAME] bond deferral saw the appellant successfully granted an [NAME] work visa, valid for five years to October 2029 (with [NAME] agreeing to defer her bond requirements to this date). [53] In January 2021, [NAME] travelled to New Zealand as the holder of a critical purpose visitor visa. Thereafter, he held work visas as the partner of a scholarship [NAME], granted as an exception to instructions given his [NAME] condition, which were valid to the duration of [NAME] [NAME] visa in July 2023. [54] The husband’s subsequent application for a partnership-based work visa was declined in November 2023 because of his [NAME], and he thereafter became unlawfully present. He successfully appealed his liability for deportation to this Tribunal (differently constituted) which saw him granted a 12-month work visa in early 2024, and he currently holds a partnership-based work visa, granted as an

12 exception to instructions, which is valid to July 2026. The husband will be required to secure further temporary visas to remain in New Zealand with the appellant, and his chronic renal condition means that these will need to be considered as an exception to instructions. [55] In November 2024, [NAME] daughter travelled to New Zealand as the holder of a visitor visa. She was then granted a [NAME] visa which is valid to the same date as [NAME] visa, in October 2029. Qualifications and work experience [56] Both the appellant and her husband are well-qualified individuals, with relevant work experience from [NAME], in their respective subject areas of medicine (the appellant) and finance (the husband). The appellant evidently comes from a family involved in the healthcare professions. She declares that her father is a dentist, one sibling a doctor and another is a registered nurse. [57] In her letter on appeal, the appellant explains that after graduating from high school in [NAME], she secured a [NAME] (as it was then called) scholarship to undertake an undergraduate medical degree at university in Fiji, which she completed in 2012. On her return to [NAME], she worked with the Ministry of [NAME] at two different hospitals. [58] In 2018, the appellant secured a further scholarship to pursue postgraduate study in New Zealand, which saw her travel here in January 2020. She successfully completed a postgraduate specialist medical qualification (awarded in December 2023), before relocating to Z region to take up an offer of employment in her specialist area. [59] The appellant states that her husband initially studied a diploma in accounting in [NAME], then held employment with the Ministry of Revenue and Customs for several years and worked elsewhere as a financial assistant. He secured a [NAME] scholarship which saw him complete a bachelor’s degree (January 2021) from the [COMPANY] in Fiji, before he travelled to New Zealand. [60] Reference letters from the husband’s former employers speak highly of his personal values including his high integrity, professionalism and strong work ethic, in addition to his skills in finance and accounting through which he made a highly valued contribution in his roles.

13 [NAME] contribution to, and settlement in, New Zealand [61] The appellant holds employment as a senior medical officer with [NAME] and works across two hospitals in Z region; a role she has now held for two years. Currently, she is an “0.9” full-time employee and works 36 hours per week (having increased from 32 hours per week at the time she commenced the position in April 2024). The appellant is receiving an annual salary of $172,152. [62] The clinical head of department (31 July 2025) writes that the appellant has become a valued member of the team. She is treating the most “at risk” patients in the community, and her ethnicity makes her well-placed to service the region’s large [NAME]. The appellant undertakes clinics and treats patients under general anaesthesia, improving outcomes for children. She is also (for [COMPANY]) the clinical paediatric lead in one department, which was “a gap in the system that needed to be filled”. [63] According to a consultant paediatric specialist (7 August 2025) at [COMPANY], the appellant is responsible for mentoring junior staff. She provides “invaluable” treatment to special needs, vulnerable, and high needs children in the region, and it would be a great loss to the department if it was to lose her. The appellant writes that through her employment she is fulfilling her passion of helping children and young patients, which she finds deeply rewarding. [64] On appeal, counsel provides an advertisement for a position largely identical to that held by the appellant, in another region, as evidence that [NAME] role is in demand in New Zealand. The Tribunal accepts that the appellant is making a valuable contribution to the [NAME] and, within this, to the Pasifika children in her region. She is also contributing to the New Zealand economy through her employment. As such, she fulfils the objective of the [APPELLANT] ([NAME]: Straight to [APPELLANT]) category by demonstrating that she has the skills to fill high skilled and/or hard to fill roles in New Zealand (SR4.1, effective 9 October 2023). [65] [NAME] is not currently working. The evidence on [NAME]’s file suggests that he held work as a research assistant at the university where the appellant was studying before the [NAME] relocated to Z region. He is presently caring for [NAME] daughter.

14 [66] On appeal, it is submitted that the husband has substantial work experience through which he could contribute to New Zealand, if given the opportunity. However, his overseas qualification is not recognised by New Zealand employers and the high volume of applicants for relevant (accounting and finance) positions has made securing relevant employment difficult. The appellant writes that she believes a resident visa would allow her husband to pursue further study in New Zealand and increase his chances of securing employment here. [67] As for wider settlement, the evidence before the Tribunal illustrates that the family are community-minded and contributing to the local community in which they have settled in Z region. The [NAME] are active and committed members of their local religious community, where they are described as regularly involved in community life and make a valuable contribution. [68] [NAME] is a committed volunteer. The coordinator of a [COMPANY] writes (4 August 2025) that the family have volunteered consistently with their local youth groups, providing mentorship, coordinating gatherings and facilitating discussions. Over the last three years, the coordinator has worked closely with the husband, whom he describes as a loving, trusted and encouraging presence for their youth, with a “heart for service”. The husband has modelled respectful behaviour and bridged cultural differences, encouraging inter-generational and inter-cultural connections, which has had a measurable positive effect on the retention and engagement of youth in the [NAME]. [69] The appellant writes that the [NAME]’s life journey so far has been winding, and while the future is uncertain, they face it together with hope, resilience and compassion. Certainly, the [NAME]’s stay in New Zealand to date has been both complicated, and facilitated, by their respective [NAME] concerns. Best interests of the child [70] 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 child are a primary consideration and must be afforded substantial weight; [NAME] v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [49]. Their best interests must be considered having regard to their particular circumstances and the nature and quality of the relationships which they have in New Zealand.

15 [71] [NAME] daughter is 15 years old. The Tribunal understands that she was living with maternal family in [NAME] prior to joining her mother and [NAME] in New Zealand 18 months ago, in November 2024. [72] In 2025, the daughter was completing Year 10 at a local secondary school. A letter from the daughter’s pastoral support teacher refers to her as an “exemplary [NAME]”, who has demonstrated that she is a diligent and attentive learner and is consistently achieving at a high standard. She is excelling in maths, English and science, and (at September 2025) had already achieved her numeracy credits. The daughter had been chosen to participate in a [NAME] with a view to her taking a leadership role in her senior years at the school. [73] [NAME] arrival in New Zealand, the daughter will have lived in [NAME] apart from her mother for five years (early 2020 to late 2024) prior to her own arrival in New Zealand. Now reunited, it appears that the daughter has settled well in New Zealand in her new educational setting. The Tribunal accepts that it is likely to be in the daughter’s best interests to remain with her mother, and [NAME], wherever they may reside. [APPELLANT] requirements [74] As discussed, [NAME] [APPELLANT] application was declined because her husband was not of an acceptable standard of [NAME]. [75] [NAME] did not complete its assessment of whether the appellant and her husband met the character requirements for [APPELLANT]. According to its electronic records, it had obtained clear New Zealand police certificates for the [NAME] and received clear police certificates from [NAME] for the appellant (31 January 2025) and her husband (10 March 2025). It was yet to receive a police certificate from Fiji, where the husband had spent more than 12 months in the 10 years prior to the [APPELLANT] application, but did not pursue this request as the application was being declined on other grounds. On appeal, the Tribunal has received a statutory declaration from the husband (19 May 2026), confirming his absence of any convictions or charges in Fiji. It will be for the Minister to decide whether to request a police certificate from Fiji for the husband. [76] [NAME] noted that the [NAME] both satisfied the English language requirements of the [APPELLANT] categories.

16 [77] In terms of familial relationships, [NAME] was satisfied that the appellant and her husband shared a genuine and stable partnership, and that the reasons for their earlier periods of separation (study) were genuine and compelling. [NAME] was also satisfied that the appellant had the right to remove her daughter from [NAME], according to the relevant [APPELLANT] instructions. A letter from the [NAME] registrar (19 February 2025) confirmed that the appellant was the sole guardian of her daughter, for whom she had custody. [78] The appellant was found to be of an acceptable standard of [NAME] for [APPELLANT]. The husband’s [NAME] is discussed below. [NAME] scholarship [79] While not relied upon to decline the [APPELLANT] application, an outstanding concern for [NAME] was the issue of [NAME] [NAME] scholarship, which would ordinarily preclude the appellant and her family from being granted a temporary visa, and meant they were not eligible to be granted a [APPELLANT] class visa, unless they obtained written approval from [NAME]. [80] At the time the appellant made her [APPELLANT] application, the relevant instructions were those at R5.105 (effective 13 May 2019), which state: R5.105 Restrictions on the grant of [APPELLANT] class visas for students holding a New Zealand scholarship administered by the Ministry of Foreign Affairs and Trade and their dependants a. Unless (b) applies, New Zealand scholarship students and their partners, and the dependent children of scholarship students and/or their partner are not eligible to be granted a [APPELLANT] class visa: i. for the duration that the [NAME] receives the scholarship; and ii. in the two-year period following cessation of the [NAME]'s scholarship (see U11). b. The restriction in (a) may be waived if written approval from the Ministry of Foreign Affairs and Trade ([NAME]) is obtained. c. [NAME] will notify [NAME] if any New Zealand scholarship [NAME], their partner or dependent children apply for a [APPELLANT] class visa at any time throughout the duration of the scholarship or in the two-year period following the cessation of the scholarship. d. Any work visa granted to the New Zealand scholarship [NAME]’s partner under immigration instructions at WF4.5 will expire on cessation of the scholarship and cannot be renewed, unless the work visa holder has written approval from [NAME] for a renewal (see WF4.5).

17 [81] The purpose of this two-year “bond” requirement is set out in the immigration instructions for this [NAME] visa: U11 New Zealand scholarship students … b. The objective of the scholarships is for candidates to gain knowledge and skills in specific subject areas that will assist in the development of their home country. c. Recipients are required to return to their home country for at least two years after the completion of their scholarship to apply these new skills and knowledge in government, [COMPANY] or [NAME]. … Effective 10/12/2022 [82] In respect of the husband, [NAME] advised that it had released him from these bond requirements, given his [NAME] circumstances. For the appellant, [NAME] saw fit to further defer her bond requirements to October 2029, to align with the expiry of her current work visa, on the basis that she was her husband’s only support person while he was receiving treatment. A letter (26 May 2025) from the scholarship manager outlined the purpose of the two-year bond period and advised that, while it had considered [NAME] request, it was not prepared to permanently defer or release her from the bond requirements. Closer to her visa expiry, her situation would need to be revisited. [83] On appeal, counsel submits that [NAME] scholarship requirements should not hinder the family’s opportunity to be granted [APPELLANT], given the importance of the husband’s [NAME]. It is said that the appellant can still fulfil the bond requirements if she is granted [APPELLANT]. [84] Given that [NAME] scholarship obligations are with [NAME]/[NAME], the Tribunal considers it likely that even if the appellant is granted [APPELLANT] (albeit not in line with immigration instructions), this would not absolve her of the bond requirements, which is a discrete matter between the appellant and [NAME], independent of her immigration status. [85] On the one hand, it is clear that the appellant is not making the contribution envisaged by the nature of her scholarship: she is not applying her qualification and skills in [NAME], as per the objective of the scholarship. However, she is currently contributing her skills to New Zealand and the [NAME] in this country. Further, the Tribunal notes that when appellant accepted her scholarship (2018) and commenced her studies in New Zealand (2020), she was unaware that

18 her husband would require lifesaving medical treatment that would prevent him from being able to return to their home country. Husband’s [NAME] [86] In early 2021, shortly after his arrival in New Zealand, the husband was diagnosed with end-stage renal failure and needed to commence dialysis a few months later. A renal clinic letter (December 2024) documents the husband’s end-stage kidney disease secondary to presumed glomerulonephritis (inflammation of the kidneys filters), and also his hypertension and gout. [87] While the timing of the husband’s diagnosis in New Zealand might seem curious, given the serious nature of his condition when diagnosed, the Tribunal (differently constituted) that determined the husband’s deportation non-resident appeal expressly found that there was no attempt by the husband to mislead [NAME] as to his [NAME] or that he came to New Zealand to seek medical treatment. Rather, the husband was unaware of his renal condition until his [NAME] was being assessed in respect of his temporary visa application. The underlying cause of his renal disease was unclear. [88] According to the husband’s renal physician (March 2025), since the [NAME]’s relocation to Z region, the husband has been established on home haemodialysis and remained independent with this treatment (undertaken for five hours, three times per week). He has not required any hospital admissions over this period. He was active on the deceased donor kidney transplant waiting list. The Tribunal was advised that the husband undertakes his dialysis in the evenings, so there is flexibility that would allow him to hold employment. [89] The medical evidence suggests that the husband is currently receiving three-monthly specialist follow-up and has monthly laboratory monitoring (to ensure his preparedness for a transplant, whenever this might occur). It is said that he has excellent medicine adherence and tolerance, and excellent [NAME] literacy, with good social support from the appellant. [90] In a report of May 2026 provided to the Tribunal, the husband’s current renal physician confirms that the husband continues to be doing well on home haemodialysis and is without any hospital admissions. The physician also states that the husband has been “worked up” for kidney transplantation but is ineligible due to his current immigration status.

19 [91] The extent to which the husband has been able to access publicly funded [NAME] services in New Zealand for his renal failure, if at all, is unclear. On appeal, the Tribunal has received evidence that the [NAME] have arranged a payment plan with their local district [NAME] board, whereby they are making fixed fortnightly payments of $100 towards the husband’s treatment. As at 16 March 2026, there was $2,429.47 outstanding. [92] If the appellant is granted [APPELLANT], he will be eligible to access the [NAME], and his treatment would place significant costs and demands on the [NAME] system. Recent decisions of this Tribunal have addressed these factors, as the rapid increasing demand for renal services is fast outstripping the medical resources available (see for example, [NAME] (2021 Resident Visa) [2024] NZIPT 206948 at [44]–[46] and [NAME] (Partnership) [2023] NZIPT 206676 at [48]–[49]). [93] A 2021 media article, [NAME] “Kidney Dialysis Demand to Grow 30 Per Cent in 10 Years: Report” New Zealand Herald (23 November 2021), noted the expected significant increase in demand for dialysis treatment in New Zealand over the next 10 years. The article also referred to what [NAME] has labelled a ‘tsunami of dialysis demand’ and noted that a report commissioned by the charity projected a 30 per cent increase in the number of dialysis patients over the next 10 years. More recent media reports document the current dialysis capacity constraints; see [NAME] “Survey Reveals the Dire State of Dialysis Services Around New Zealand” RNZ (5 May 2026). [94] The New Zealand Institute of Economic Research (NZIER) similarly states that as at late 2021, the cost of dialysis per patient was estimated at $115,712 per year; see NZIER Transforming Lives and Saving Money (5 November 2021) at pi. As at the present time, the per-patient annual cost of treatment will have highly likely increased from that figure. Further, the population expected to be using dialysis in New Zealand was predicted to increase to over 5,700 (5,727 to 5,792) by 2031/2032, a 29 to 30 per cent increase from 2021 figures (see the NZIER report at p14). [95] However, the evidence before this Tribunal is that there are no dialysis services in [NAME]. Despite decisions of this Tribunal over the last few years referring to the pending operation of a dialysis unit there, this is still yet to eventuate.

20 [96] On appeal, the [NAME] at the Ministry of [NAME] in [NAME] states (4 August 2025) that haemodialysis services are not yet available in [NAME]. The confirmed date of operations was “currently” set for 2026, “subject to the progress of planned developments”, and patient eligibility criteria was yet to be finalised. The officer advised that [NAME] does not offer kidney transplant services or local follow-up care for transplant recipients. The website of the [NAME] states a timeline of “late 2026” (see [COMPANY] at www.siaosibrowndialysiscenter.com). Once operational, the Center “will provide free essential dialysis treatment to Tongans suffering from end-stage kidney failure”. [97] As the husband’s general practitioner confirms (11 August 2025), the husband’s haemodialysis treatment is life-sustaining and essential. Without it, he will not survive. Therefore, a return to [NAME], where dialysis is not currently available, would result in certain death. [98] The significant burden and cost that the husband’s renal treatment places on New Zealand’s [NAME] system, where renal services are in high demand and already overburdened, must be weighed against the fact that a return to [NAME] would immediately deprive him of these essential life-preserving [NAME] services. Discussion on special circumstances [99] 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. [100] The appellant is a well-qualified [NAME] practitioner who completed postgraduate study in New Zealand before securing employment as a senior medical officer. She is settled in New Zealand with her husband and teenage daughter and holds a work visa valid to late 2029. [101] [NAME] circumstances in New Zealand, and in this appeal, are centrally linked to those of her husband. He is receiving life-preserving dialysis treatment in this country and cannot obtain this in [NAME]. As his partner and his only family support in New Zealand, it is his [NAME] circumstances that prompted [NAME] to defer [NAME] scholarship bond requirements which enabled her to be granted her current work visa and to make the [APPELLANT] application that has given rise to this appeal. Absent the husband’s [NAME] issues, the appellant would have been precluded from remaining in New Zealand and applying for [APPELLANT]

21 until at least mid-2025. But for the [NAME]’s unfortunate series of [NAME] events, it is unlikely that they would have remained in New Zealand past mid-2023, when [NAME] scholarship studies were completed. [102] However, it is notable that appellant and her family otherwise appear to meet the requirements of the [APPELLANT] ([NAME]: Straight to [APPELLANT]) category, but for the issue of the husband’s [NAME]. The appellant is contributing to [COMPANY]; the same services that her husband is accessing for his renal disease. While the appellant is not applying her skills in [NAME], as her scholarship requires, she is indirectly contributing to [NAME] and other Pasifika in New Zealand, by treating and improving medical [NAME]. Further, it does not appear that a grant of [APPELLANT] to the appellant would release her from her scholarship obligations to [NAME]. [103] The husband’s circumstances, as a citizen of [NAME] who requires dialysis, raise policy considerations involving the public interest in maintaining the integrity of government immigration instructions and policy, which have the objective of ensuring that people who enter (and reside) in New Zealand do not impose excessive costs and demands on [COMPANY]. The Tribunal has found, in its deportation non-resident jurisdiction, that such decisions are best made by the Minister, taking policy into account. While the appellant and her daughter hold temporary visas for the next few years, the husband’s status in New Zealand is less stable. The duration for which he may continue to require dialysis, until a kidney transplant is available, is unknown. The time at which [NAME] will have an operating dialysis unit, and its future capacity and capability to provide care for the husband, pre- or post-transplant, is unclear. [104] The Tribunal finds that the appellant and her husband should have some certainty as to their family’s ability to remain in New Zealand, in terms of their future employment and settlement and in regard to the husband’s [NAME] treatment. Conclusion on special circumstances [105] Having regard to circumstances of the appellant and her family, the Tribunal finds that, considered cumulatively, their circumstances are sufficiently uncommon and out of the ordinary as to amount to special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to [APPELLANT] instructions.

22 Certified to be the Research Copy released for publication.

[NAME] Member DETERMINATION [106] Pursuant to section 188(1)(f) of the Immigration Act 2009, the Tribunal confirms the decision of [NAME] to be correct in terms of the applicable [APPELLANT] 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. [107] Pursuant to section 190(5) of the Act, the Minister of Immigration: (a) is requested to consider whether a [APPELLANT] class visa should be granted, as an exception to [APPELLANT] instructions, to the appellant and to the following secondary appellants in her [APPELLANT] appeal: […] and […]; and (b) may, if granting a resident visa, impose conditions on the visa in accordance with section 50 of the Act. [108] 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 [109] 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 [NAME] name and any particulars likely to lead to the identification of the appellant or her family members. “[NAME]” [NAME] Member