Residence Application Rejected Due to Insufficient English Language Scores

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207461 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

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

Before: S McDowall (Member)

Representative for the Appellant: [redacted]

Counsel for the Respondent: [redacted]

Date of Decision: 1 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 32-year-old citizen of Fiji whose application for residence under the Skilled Residence (Green List: Work to Residence) category was declined by Immigration New Zealand. The application included his wife, aged 26-years-old and his son, aged five-years-old. Both are citizens of Fiji. THE ISSUE [2] Immigration New Zealand declined the appellant’s residence application because he did not meet the English language requirement in the form of an acceptable English language test that was less than two years old. [3] The Tribunal finds that Immigration New Zealand’s decision was correct. The principal issue for the Tribunal is whether the appellant has special circumstances, arising from his employment in a role on Immigration New Zealand’s Green List and his settlement in New Zealand.

2 [4] For the reasons that follow, the Tribunal finds that the appellant does not have special circumstances such as to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

BACKGROUND [5] The appellant first arrived in New Zealand in June 2016, holding a limited visa. He has since held a series of visitor and work visas and his most recent work visa is valid until 29 December 2027. [6] The appellant married his wife in Fiji in August 2019. They have one child together, a son, born in [DATE] in Fiji. [7] The appellant’s wife and son arrived in New Zealand in March 2023. [8] The appellant’s wife holds a work visa, and his son holds a student visa, both valid until 29 December 2027. Residence Application [9] On 21 March 2025, the appellant made an online application under the Skilled Residence (Green List: Work to Residence) category of residence instructions. He claimed that his employment as an automotive electrician for a company specialising in forklifts, farm equipment and trucks, satisfied the requirements of instructions. [10] By letter dated 26 March 2025, Immigration New Zealand informed the appellant of several concerns about his application. Of relevance to the appeal, it appeared the appellant did not meet the English language requirement because he had not provided evidence of an acceptable English language test result, nor did it appear that he met any of the other English language requirements in lieu of evidence of a test. [11] By letter dated 6 April 2025, the appellant requested a waiver for the English language requirement. He explained that as a citizen of Fiji, he had been speaking, reading and writing in English throughout school and university. Further, he understood the importance of an English test as part of the application process and assured Immigration New Zealand that his English proficiency was

3 more than sufficient to meet the standards of New Zealand and everyday working life. He had extensive work experience in Fiji and New Zealand. [12] Immigration New Zealand responded the same day, explaining that it could not waive the English language requirement. [13] On 11 May 2025, the appellant provided the results of his and his wife’s English tests. He scored a 52 on the Pearson Test of English Academic (PTE Academic) and his wife scored a 70. On 12 May 2025, Immigration New Zealand advised the appellant that his score was not sufficient to meet instructions and that he would have time to sit the test again. Immigration New Zealand’s Decision [14] On 30 June 2025, Immigration New Zealand declined the residence application because the appellant did not meet the minimum standard of English language required of principal applicants. Therefore, instructions SR5.5.a.ii and SR2.10.1 were not met. STATUTORY GROUNDS [15] 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. [16] The residence instructions referred to in section 187(4) are the Government residence instructions contained in Immigration New Zealand’s Operational Manual; see www.immigration.govt.nz. THE APPELLANT’S CASE [17] On 8 July 2025, the appellant lodged this appeal on both grounds in section 187(4).

4 [18] In support of his appeal, the appellant provides the following documents: (a) a letter of support from his employer (7 July 2025); (b) a photocopy of his passport; and (c) a copy of his certificate of safety requirements for his employment (13 August 2025). Further information provided on appeal [19] The Tribunal cannot consider further information provided by an appellant that was not before Immigration New Zealand at the time that it made its decision to decline the application (section 189(1) of the Act). [20] There is a relevant exception to section 189(1) where, as in this case, the Tribunal considers that the further information 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 from [30]. ASSESSMENT [21] The Tribunal has considered the submissions and documents provided on appeal and the file provided by Immigration New Zealand in relation to the appellant’s residence application, and Immigration New Zealand’s relevant electronic records. [22] An assessment as to whether the Immigration New Zealand decision to decline the appellant’s application was correct in terms of the applicable residence instructions is set out below. This 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 [23] The application was made on 21 March 2025 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because the appellant did not meet the minimum standard of English language required of principal applicants.

5 [24] Applicants under the Skilled Residence (Green List: Work to Residence) category must meet a minimum standard of English (SR5.5.a.ii, effective 28 February 2024). Those minimum requirements are set out at SR2.10.1: SR2.10.1 Minimum standard of English language for principal applicants a. Principal applicants in a Skilled Residence application are considered to meet the minimum standard of English if they provide acceptable English language test results no more than two years old at the time the application is lodged, as set out at SR2.10.5, obtained by sitting the test in person at a test centre (tests taken remotely outside of a test centre, including ‘at home’ tests, are not acceptable). b. Other evidence that a principal applicant meets the minimum standard of English is: i. citizenship of Canada, the [NAME_2], the United Kingdom or [NAME_2], provided the applicant has spent at least five years in work or education in one or more of those countries or Australia or New Zealand; or ii. a qualification meeting the requirement at (e) below comparable to a New Zealand level 7 bachelor’s degree and gained in Australia, Canada, New Zealand, the [NAME_2], the United Kingdom or [NAME_2] as a result of study undertaken for at least two academic years in one or more of those countries; or iii. a qualification meeting the requirement at (e) below comparable to a New Zealand qualification at level 8 or above and gained in Australia, Canada, New Zealand, the [NAME_2], the United Kingdom or [NAME_2] as a result of study undertaken for at least one academic year in one or more of those countries. c. In any case, an immigration officer may require a principal applicant to provide an English language test result in terms of paragraph SR2.10.1(a). In such cases, the English language test result will be used to determine whether the principal applicant meets the minimum standard of English. d. Skilled Residence applications must be declined if the principal applicant has not met the minimum standard of English. … SR2.10.5 Acceptable English language test results for principal applicants The following English language test results are acceptable: Test Minimum score required International English Language Testing System (IELTS) - General or Academic Module Overall score of 6.5 or more …

6 Pearson Test of English Academic (PTE Academic) Overall score of 58 or more …

Effective 26/06/2024 [25] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application for residence was correct, for the following reasons. [26] The appellant sat the PTE Academic test twice in April and May 2025 in an attempt to provide the required documentation of his English language ability. His highest score of 52 was below the minimum score of 58 required to meet the instructions of having a minimum standard of English language for a Skilled Residence category applicant. [27] The appellant did not meet any of the listed exceptions. He was not a citizen of Canada, the [NAME_2], the United Kingdom, [NAME_2], Australia, or New Zealand, nor had he spent at least five years working or studying in any of those countries. He also did not hold a qualification comparable to a New Zealand Level 7 bachelor’s degree requiring at least two years of study, or a Level 8 or above qualification requiring at least one year of study, obtained in one of those countries. [28] Instruction SR2.10.1.d required Immigration New Zealand to decline any application under a Skilled Residence category if the principal applicant did not meet the minimum standard of English. Immigration New Zealand had no discretion to waive the English language requirement or do anything other than decline the application. Conclusion on correctness [29] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application for residence was correct. The appellant did not meet the minimum English language requirement of residence instructions as set out at SR5.5.a.ii and SR2.10.1. Whether there are Special Circumstances [30] Where the Tribunal found the decision of Immigration New Zealand to be correct, it has the power to consider whether the circumstances of the appellant

7 are special, such that they warrant consideration by the Minister of Immigration of an exception to the residence instructions. [31] 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. [32] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME_3] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. Personal and family circumstances [33] The appellant is a 32-year-old citizen of Fiji. He married his wife in 2019 in Fiji. They have a son together, born in 2021 in Fiji. [34] The appellant’s mother lives and works in Australia and his sister is a New Zealand citizen. There is no information on file about the wife’s family. In his correspondence with Immigration New Zealand dated 25 May 2025, he refers to providing financial support to family members overseas. Immigration history [35] The appellant initially arrived in New Zealand in June 2016 holding a limited visa. In total, he has lived in New Zealand for six years holding visitor and work visas. He was absent from New Zealand for two significant periods: July 2016 to July 2017, and March 2020 to December 2022. His most recent arrival was in December 2022, and he has remained in New Zealand continuously since that date. The appellant’s wife and son first arrived in New Zealand in March 2023. They made a one-month visit to Fiji in August 2024 and have remained here since. Qualifications, work experience and settlement [36] The appellant holds a Certificate in Automotive Engineering (Motor Vehicle Electrical and Electronics) at Level 4 from a university in Fiji. An NZQA assessment confirms that the qualification is comparable to a New Zealand Level 4 certificate and satisfies the credit and knowledge requirements associated with the Green List occupation of Automotive Electrician.

8 [37] The appellant has been employed in New Zealand as a forklift technician specialising in automotive electrical work since December 2022. Prior to his current role, he was employed by [NAME_4] in the automotive and mechanical sectors. [38] The appellant’s employer describes him as an experienced automotive electrical technician. They state that he is receptive to new ideas, demonstrates a willingness to acquire new skills, and has excelled in his electrical field. According to the employer, he is extensively involved in diagnosing electrical faults in forklifts and construction equipment, repairing electronic controllers, and installing control and safety systems across a range of electric forklifts and excavators. The employer further notes that the appellant communicates effectively, provides detailed written accounts of his work, and engages directly with customers on a daily basis. [39] The appellant’s wife has not provided evidence of holding a tertiary qualification. She is currently employed part time in a large retail store. [40] The appellant contributes to New Zealand through his work as an automotive electrician. His occupation is included on Immigration New Zealand’s Green List, indicating that it is recognised as an area of national skills shortage. [41] The appellant met the qualification requirements of the Skilled Residence (Green List: Work to Residence) category, health and character. The application was only declined because he did not meet the English language requirement. However, English language is a core requirement and his failure to reach the required level will continue to be a problem in future residence applications until he is able to satisfy that requirement. [42] The Tribunal acknowledges that it is frustrating for the appellant to have his application declined only on the basis of English and recognises that there are significant costs involved in retaking the tests and reapplying for residence if or when he is able to reach the required level. However, failing to meet a central requirement of instructions is not an uncommon circumstance for many applicants. However, the appellant has a visa until December 2027 so has time to consider his options. [43] No specific information has been provided about the appellant’s settlement in New Zealand. However, given the length of time he has lived and worked here, it is reasonable to expect that he has developed community connections,

9 employment relationships and daily routines, all of which suggest that his life is rooted in New Zealand. Best interests of the child [44] 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(ren) are a primary consideration and must be afforded substantial weight; [NAME_5] v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [49]. [45] The best interests of a child must be considered having regard to their particular circumstances and the nature and quality of the relationships which they have in New Zealand. [46] The appellant and his wife have one child, aged five years. He was born in Fiji and has been primarily cared for by his mother. At his current stage of development, he is fully dependent on his parents. No information has been provided regarding his schooling or other developmental circumstances. If he has commenced schooling in New Zealand, this could only have occurred from the beginning of the current year, as he turned five in January 2026. There is no evidence before the Tribunal indicating that he has any particular vulnerabilities. [47] The Tribunal finds that it is in the child’s best interests to remain in the care of his parents, whether that care is provided in New Zealand or in Fiji. There is no evidence before the Tribunal to suggest that the child’s best interests require the grant of residence. Health and character requirements [48] Immigration New Zealand found both the appellant and his wife had an acceptable standard of health. [49] The appellant and his wife provided Immigration New Zealand with clear police certificates (1 April 2025) from Fiji and New Zealand (12 April 2025). Discussion on special circumstances [50] The appellant has a familial nexus to New Zealand because his only sibling appears to be a New Zealand citizen. He has no immediate family in Fiji. He has lived in New Zealand for over nine years in total, including continuously since

10 December 2022. His wife and son have lived in New Zealand for the past three years. [51] The appellant is employed as an automotive electrician and holds the qualifications required under the Skilled Residence (Green List: Work to Residence) category. He has been with [NAME_4] for more than three years and is regarded as a highly valued employee in a business specialising in forklifts and trucks. [52] The appellant contributes to New Zealand through his work in an occupation listed by Immigration New Zealand as a skills-shortage area, and his wife is also employed. There is no evidence indicating that granting residence is necessary to meet the best interests of their son. [53] No direct evidence has been provided about the family’s circumstances in Fiji. However, both adults have spent most of their lives there, the appellant worked in Fiji during the COVID-19 period, and it appears that some members of the wife’s family still reside there. [54] The Skilled Residence category application was declined because the appellant did not provide evidence of meeting the English language requirement, although he met all other criteria. If he is able to meet that requirement in the near future, he will have a pathway to residence, as both he and his wife hold valid work visas until December 2027. The appellant also has time to improve his English and re-sit the required test should he wish to meet immigration requirements in the future. Conclusion on special circumstances [55] Having regard to circumstances of the appellant and his family the Tribunal finds that the appellant does not have special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to residence instructions. DETERMINATION [56] This appeal is determined pursuant to section 188(1)(a) of the Immigration Act 2009. The Tribunal confirms the decision of Immigration New Zealand to decline the appellant's application for residence as correct in terms of the

11 Certified to be the Research Copy released for publication.

S McDowall Member applicable residence instructions. The Tribunal does not consider that the appellant has special circumstances which warrant consideration by the Minister of Immigration as an exception to those instructions under section 188(1)(f) of the Act. [57] The appeal is unsuccessful. Order as to Depersonalised Research Copy [58] Pursuant to clause 19 of Schedule 2 of the Act, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant or his family members. “S McDowall” S McDowall Member