Special Circumstances Allow Residence Application Despite Previous Marriages

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207481 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 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 47-year-old citizen of China whose application for residence under the Family ([APPELLANT]) category was declined by Immigration New Zealand because her husband had acted as a partner in more than one previous successful residence application. The Tribunal finds that Immigration New Zealand’s decision to decline the application was correct. THE ISSUE [2] The principal issue for the Tribunal is whether the appellant has special circumstances arising from the genuine nature of her husband’s two previous marriages and their present marriage, the permanent bar that means she is unable to seek a residence visa on the basis of her [APPELLANT], and her and her husband’s desire to live in New Zealand with their son, who is a New Zealand resident. [3] For the reasons that follow, the Tribunal finds that the appellant does have special circumstances such as to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

2

BACKGROUND [4] The appellant has never been to New Zealand. Her parents are deceased. Her brother and sister reside in the same city as her in China. [5] The appellant first met her husband, [APPELLANT], in China in 2000. When she met him, [NAME] lived in New Zealand and was married to his [NAME]. As the appellant’s application was declined on the basis that her husband had acted as a partner in more than one previous successful residence application, it is helpful to set out how [NAME] came to live in New Zealand and his support for his first two wives’ applications. Partner’s first marriage and potential revocation of residence [6] [NAME] met his first wife in China in 1993, and they began living together in June 1993. In December 1993, [NAME] applied for residence in New Zealand under the Family (Reunification) category (as it was then) on the basis his parents and four siblings were residing here. The criteria for an application under the Family (Reunification) category was that the applicant be single with no children and have no immediate family in their home country. [7] In February 1994, [NAME] was interviewed by the New Zealand Immigration Service (NZIS), as it was then, in Beijing. He did not declare that he was living with his partner, nor that she was pregnant with their first child. In April 1994, [NAME]’s first son was born. In August 1994, [NAME] was granted a residence permit. In September 1994, he married his first wife, and, in October 1994, he arrived in New Zealand. His first wife and their son remained in China. [8] In 1996, [NAME] first wife applied for residence in New Zealand based on their marriage. Upon his first wife disclosing to NZIS that the [NAME] had been living together and had a child before [NAME] was granted his resident permit, NZIS undertook an assessment to consider whether to revoke [NAME]’s resident permit on the basis he had concealed relevant information. [9] In July 1998, NZIS determined that it would not revoke [NAME]’s resident permit. It was satisfied that, while there were grounds for revocation, there were humanitarian factors present which outweighed those grounds. Among the humanitarian factors noted by NZIS were that his parents and siblings were in New Zealand, he had stable employment as a panel beater, he co-owned (with his sister) his home in New Zealand and he was not reliant on financial support from the New Zealand state.

3 [10] In July 1998, [NAME] was advised revocation would not be pursued, and in September 1998, his first wife and son were granted residence in New Zealand. [NAME] supported the successful application. [11] In August 1999, [NAME] [NAME] son, [NAME], was born. Both children born of his first marriage are now [NAME]. [12] In August 2000, [NAME] first wife died. [NAME] [NAME] marriage [13] In 2001, [NAME] met his [NAME], also a citizen of China. They married in 2002. [14] In 2003, [NAME] became a New Zealand citizen. In the same year, he supported his [NAME]’s successful application for residence. Their three children, now aged 23, 21 and 14 years old, were all born here and are [NAME]. [15] The [NAME] ceased living together in 2014 and signed a separation agreement in 2017. [NAME] [NAME] marriage was formally dissolved in 2023. Relationship with the appellant [16] During his [NAME] marriage, [APPELLANT] commenced a relationship with the appellant. They had first met in 2000 in China, but their relationship began when [NAME] visited China in October 2006. Their son was born in [DATE], just a few months after [NAME] third child from his [NAME] marriage was born in [DATE]. [17] In May 2014, [NAME] ceased living together with his [NAME] and left New Zealand. He lived in China with the appellant and their son in her family home until May 2017. Since then, [NAME] has spent periods in both New Zealand and China. The appellant and [APPELLANT] were married in China in December 2023. [18] In March 2024, the [NAME]’s son [NAME] first arrived in New Zealand as the holder of a resident visa, having been granted residence as a dependent child of [NAME]. Since arriving, he has lived with [NAME] and his [NAME], [NAME]. [19] [APPELLANT] and [APPELLANT] travelled back to China to visit the appellant between January and February of 2025 and again in 2026, staying for approximately one month each time. [NAME] travelled with them for the most recent visit in early 2026. [NAME] made additional visits to the appellant in China in October 2024 and May 2025 (each for approximately one month). Residence Application [20] On 30 September 2024, the appellant lodged an application under the Family ([APPELLANT]) category of residence instructions. [21] Family ([APPELLANT]) category instructions require that the New Zealand- citizen or resident partner must not have acted as a partner in more than one previous successful residence application. Immigration New Zealand’s Concerns [22] On 19 May 2025, Immigration New Zealand advised the appellant that it appeared [APPELLANT] was not eligible under instruction F2.10.10.a.i to support her application because he had successfully supported two previous partners for residence. [23] On 3 June 2025, a representative for the appellant responded seeking a special direction from the Minister of Immigration, pursuant to section 378 of the Immigration Act 2009 (the Act), for a waiver of the limitation in instruction F2.10.10.a.i. It was submitted the instruction was a technical limitation and that each of [NAME]’s previous two marriages were genuine and that the appellant’s marriage to [APPELLANT] was also genuine and had endured for a long time. Immigration New Zealand’s Decision [24] On 11 June 2025, Immigration New Zealand responded acknowledging the circumstances of [NAME]’s first two marriages. It also noted the request for a special direction under section 378 of the Act. However, it recorded that it did not have the authority to waive the relevant immigration instruction and only the Minister, or a delegated decision-maker, could do so. [25] Immigration New Zealand declined the appellant’s application because it was not satisfied that [NAME] was eligible to support the application. [26] As it was declining the application on that ground, Immigration New Zealand did not complete its assessment of whether the [NAME] had been living together in a genuine and stable relationship nor whether the [NAME] had genuine and compelling reasons for periods of separation.

5 STATUTORY GROUNDS [27] The appellant’s right of appeal arises from section 187(1) of 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. [28] 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 [29] On 22 July 2025, the appellant lodged this appeal on the ground her circumstances are special such that an exception to the residence instructions should be considered. [30] In submissions filed with the Tribunal (9 October 2025), counsel accepts that Immigration New Zealand’s decision was correct. It is submitted the appellant has special circumstances arising out of the following: (a) [NAME]’s two previous marriages were entered into for genuine reasons and resulted in children and do not engage the policy reasons behind instruction F2.10.10, that is, to guard against potential abuses of the [NAME]. (b) The appellant’s relationship with [NAME] is genuine and enduring and has resulted in a son, who has been living in New Zealand since March 2024. (c) The appellant has limited familial support in China. (d) The appellant will be financially supported by [NAME] in New Zealand and will not be a burden on the New Zealand taxpayer.

6 [31] In support of the appeal, counsel provided the following documents (those documents previously provided to Immigration New Zealand are not listed below): (a) A relationship timeline dated 27 June 2025. (b) A statement (23 June 2025) from the appellant stating that, over the past 18 years, she and [APPELLANT] have built a genuine, stable and deeply committed relationship and have raised their son, [NAME] together. (c) A statutory declaration (5 July 2025) by [NAME] outlining some of the circumstances of his first two marriages. He describes his third marriage to the appellant as genuine and committed. (d) A letter (1 July 2025) from [NAME] stating that, until he came to New Zealand in 2024, his mother had constantly cared for him and he misses her since moving to New Zealand with his father. Photos attached to the letter show [APPELLANT] spending time with the appellant, [APPELLANT] and his maternal grandparents in China in 2018. (e) A letter (2 July 2025) from [NAME]’s sister who lives in New Zealand. She states that she has assisted [NAME] in helping [NAME] adjust to his new environment in New Zealand. (f) A letter (2 July 2025) from [NAME], [NAME]’s son from his first marriage, who states he has lived with [NAME] since [NAME] arrived in New Zealand in March 2024. (g) International money transfer records (3 May 2024–26 June 2025) recording payments sent by [NAME] to the appellant in China. [32] On 21 April 2026, the Tribunal wrote to the appellant’s counsel seeking further information relating to the circumstances of the [NAME]’s [APPELLANT], [NAME]’s relationships with his children from his first two marriages and further details of [NAME]’s settlement, schooling and care arrangements since arriving in New Zealand. [33] On 28 April 2026, counsel provided further submissions and the following additional (new) documents: (a) Statutory declaration (24 April 2026) of [NAME] stating [NAME] lives with him and his son [NAME] in New Zealand and attesting to the genuine and stable relationship he has with the appellant.

7 (b) A letter (13 February 2026) confirming a medical appointment for [NAME] on 18 March 2026. (c) A letter (23 April 2026) from [NAME] stating that he lives with his father and brother in New Zealand and attends school but that he misses his mother immensely. (d) [NAME]’s high school report (February–April 2026) and a letter from the school principal confirming he is an enrolled student. (e) [NAME] records between [APPELLANT] and the appellant (March 2024–April 2026). (f) A letter (23 April 2026) from [NAME] confirming he lives with [NAME] and [NAME] in his father’s home and that he looked after [NAME] after he and [NAME] returned to New Zealand on 24 January 2026 until his father returned on 3 February 2026. (g) A letter (25 April 2026) from [NAME]’s sister stating that she was present during [NAME]’s most recent trip to visit the appellant in China in January 2026. (h) A letter (25 April 2026) from [NAME]’s former employer in China from 2015 to 2018 attesting to [NAME]’s good character and the genuineness of his relationship with the appellant. [34] The Tribunal takes all of the above information into account, as necessary, for its determination of whether the appellant has special circumstances (see section 189(3)(b) of the Act). ASSESSMENT [35] The Tribunal has considered the submissions, documents and further information provided on appeal and the file provided by Immigration New Zealand in relation to the appellant’s and [NAME]’s residence applications and Immigration New Zealand’s relevant electronic records. [36] 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

8 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. Whether the Decision is Correct [37] The application was made on 30 September 2024 and the relevant criteria are those in the residence instructions as at that time. Immigration New Zealand declined the application because the appellant’s New Zealand-citizen partner was not an eligible supporting partner for her application, as he had acted as a partner in more than one previous successful residence application Family ([APPELLANT]) category instructions [38] A Family ([APPELLANT]) category residence application will be declined if it is not supported by an eligible New Zealand citizen or resident partner (F2.5.d.i). For a partner to be eligible, they must not have acted as a partner in more than one previous successful residence application (F2.10.10.a.i): F2.5 How do partners of [NAME] and residents qualify for a residence class visa? … d. An application under [APPELLANT] will be declined if: i. the application is not supported by an eligible New Zealand citizen or resident partner; or … Effective 08/05/2017 F2.10.10 Definition of ‘eligible to support a residence class visa application under the [APPELLANT]’ a. For a New Zealand partner (F2.10.2) to be eligible to support a residence class visa application under the [APPELLANT] they: i. must not have acted as a partner in more than one previous successful residence class visa application (see (b) below); and … b. A New Zealand partner is considered to have acted as a partner if they previously: i. supported a successful [APPELLANT] application for a residence class visa; or …

9 iii. were the principal applicant in a successful application for a residence class visa that included a secondary applicant partner, excluding residence class visa applications made under RV after the grant of a resident visa; or … Effective 23/12/2019 [39] The appellant’s application for a residence class visa under the Family ([APPELLANT]) category was supported by her New Zealand-citizen partner. [40] Immigration New Zealand’s records establish that [NAME] acted as a supporting partner for his first and [NAME] wives’ successful residence class visa applications, granted on 28 September 1998 and 5 February 2003 respectively. Conclusion on correctness [41] As [NAME] had acted as a partner in more than one previous successful residence application (F2.10.10.a.i and F2.10.10.b), he was not eligible to support the appellant’s residence application (F2.5.d.i). [42] Immigration New Zealand’s decision to decline the application was therefore correct. Whether there are Special Circumstances [43] 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. [44] 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. [45] 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.

10 The appellant’s personal and family circumstances [46] The appellant has lived in Guangzhou, China all of her life. Her father and mother died in 2019 and 2025, respectively. Her brother and sister live in the same district of Guangzhou as the appellant. She states (23 June 2025) that they have their own families and are unable to support her and that, following the death of her mother in 2025, her only close family members are her husband [APPELLANT] and son, [APPELLANT] who live in New Zealand. [47] The appellant was previously employed as a factory worker in China. However, she has not held paid employment since 2006. She is financially supported by [NAME] who is employed as a mechanic in New Zealand. Circumstances of the supporting partner’s three marriages [48] The appellant’s husband, [APPELLANT], first arrived in New Zealand in 1994, aged 25 years old, as the holder of a resident visa granted under the Family (Reunification) category. He was granted residence because he did not disclose that he was living with his partner at the time he lodged his application. NZIS conducted an assessment as to whether to revoke the resident permit but determined, on humanitarian grounds, to allow him to retain his resident permit and remain in New Zealand. His first wife and first son were then granted residence permits in 1998. His [NAME] son was born in [DATE]. [NAME]’s first marriage came to an end when his first wife died in August 2000. [49] In 2001, [NAME] met his [NAME]. They were married in 2002 and had three children born in [DATE]. [NAME] states (24 April 2026) that they lived together for a “short period” before the relationship deteriorated. He states (5 July 2025) that, for the sake of their children, they maintained the [RESPONDENT] of a marriage while living separately in the same household. [50] [APPELLANT] says he began a committed relationship with the appellant in China in 2006. Their son, [APPELLANT], was born in [DATE]. [NAME] travelled to China for six months from November 2011 to May 2012, and for one year and five months between September 2012 and February 2014. [51] In May 2014, [NAME] ceased living in the same household as his [NAME] and he travelled to China. In June 2014, his [NAME] moved out of the family home in New Zealand. [NAME] and his [NAME] signed a separation agreement in

11 2017 and the children remained in her day-to-day care. Their marriage was formally dissolved in 2023. [52] Travel records indicate [NAME] has regularly travelled between New Zealand and China since 2014 when he ceased living in the same household as his [NAME]. Although travel records only record his destination upon departure from New Zealand, for the purposes of the summary below, it is presumed he remained in China for the recorded periods: Date Time in New Zealand Time in Guangzhou, China 08/05/14 – 08/05/17 - 3 years 08/05/17 – 13/02/18 9 months - 13/02/18 – 17/10/18 - 8 months 17/10/18 – 07/11/18 3 weeks - 07/11/18 – 02/12/19 - 1 year, 1 month 02/12/19 – 04/11/23 4 years - 04/11/23 – 06/03/24 - 4 months 06/03/24 – 15/10/24 7 months - 15/10/24 – 27/11/24 - 1 month 27/11/24 – 08/01/25 6 weeks - 08/01/25 – 09/02/25 - 1 month 09/02/25 – 18/05/25 3 months - 18/05/25 – 25/06/25 - 1 month 25/06/25 – 08/01/26 7 months - 08/01/26 – 03/02/26 - 1 month Total time 6 years, 4 months, 1 week 5 years, 5 months [53] The appellant and [NAME] were married in China in December 2023. [NAME] states (24 April 2026) that he stays with the appellant when he travels to China and that they maintain regular contact when he is in New Zealand. Genuineness of supporting partner’s three marriages [54] In previous decisions, the Tribunal has consistently noted that one of the main purposes of the relevant instructions is to guard against potential abuses of the [NAME] through the creation of relationships that are not genuine. An underlying concern is that, when a partner is supporting a third or subsequent partner for residence, the partnerships may be motivated by one party’s desire to gain residence, rather than the creation of a genuine and stable [APPELLANT] (see [NAME] ([APPELLANT]) [2015] NZIPT 202701 at [36]). [55] The Tribunal is satisfied [NAME] first marriage was genuine. Their relationship lasted for seven years, and they had two sons. The marriage came to an end upon his first wife’s death in August 2000.

12 [56] [NAME] met his [NAME] in 2001 and they were married in 2002. They had three children, now aged 23, 21 and 14 years old. [NAME] states (24 April 2026) that after “a short time” their relationship deteriorated as it lacked a strong emotional foundation and the [NAME] maintained the outward appearances of their relationship for the sake of their children. Despite this assertion, the Tribunal observes the [NAME]’s youngest child was born in [DATE] in New Zealand, four months before the appellant’s son with [NAME] was born in China. The birth of their third child in 2011 demonstrates that, at a minimum, a physical relationship between [NAME] and his [NAME] continued beyond a “short time” after their marriage. [57] [NAME] [NAME] marriage lacked a strong emotional foundation, coupled with the fact that he commenced a relationship with the appellant in 2006 while continuing to reside with his [NAME], it is difficult to conclude that his commitment to his [NAME] was genuine and stable. In 2011, [NAME] fathered two children to two different mothers and (when in New Zealand) remained living with his [NAME] for three years after their youngest son’s birth. [58] While this is so, the Tribunal acknowledges that couples are free to establish the standards and parameters of their relationships. Immigration policies are designed to assess the genuineness of relationships without dictating moral standards. Of significance, the Tribunal observes that, [NAME]’s [NAME] was granted residence in February 2003. After that date, there was no immigration related incentive for [NAME] and his [NAME] to maintain their marriage solely in order for her to gain residence in New Zealand. To that extent, the Tribunal is satisfied that [NAME]’s [NAME] marriage was not entered into for the purposes of abusing New Zealand’s [NAME]. Despite the marriage lacking a strong emotional foundation, or a monogamous commitment, the relationship did endure for several years (from 2001 until 2011) and the [NAME] had three children. The Tribunal is satisfied it was entered into for genuine reasons and not as an attempt to obtain residence for [NAME]’s [NAME]. [59] The Tribunal finds that, as at May 2014, [NAME] [NAME] marriage had come to an end (when the [NAME] ceased living together) and he commenced a committed relationship with the appellant. [60] Both the appellant and [NAME] state that their relationship commenced in 2006. However, at that time, [NAME] was married to and living with his [NAME]. The [NAME]’s son, [NAME], was born in China in 2011. The Tribunal finds that the appellant and [APPELLANT] commenced a committed and genuine relationship from May 2014. Prior

13 to that date, [NAME] was living with his [NAME], and they had a third child born in [DATE]. It was only in May 2014 that [NAME] ceased living together with his [NAME] in New Zealand and travelled to China to live with the appellant and [APPELLANT] for the following three years. [61] Since May 2014, the appellant has spent approximately [NAME] his time in New Zealand, and [NAME] in China, as demonstrated in the table above at [52]. The longest period spent in New Zealand was between December 2019 and November 2023 which, although not stated in evidence, is likely the result of the COVID-19 pandemic and the restrictions on travel during that time. Despite spending long periods apart, over the past 12 years of their relationship, [NAME] has made regular trips back to China to maintain his relationship with the appellant (and [NAME]) and the appellant and [APPELLANT] (and [APPELLANT]) have remained in regular contact when in different countries. In early 2026, [NAME] visited China with his father and [NAME], and his letter on appeal describes building a positive relationship with the appellant. The Tribunal considers the appellant’s relationship with her stepson, [APPELLANT], is another marker of the genuineness of the marriage. Taken together, the Tribunal is satisfied that the appellant’s relationship with [APPELLANT] is genuine and that her desire to live in New Zealand with him, and their son, is also genuine. Supporting partner’s connection to New Zealand [62] [NAME] has been a resident of New Zealand for the last 30 years and has been a citizen for over 20 years. He is employed as a mechanic and all six of his children reside in New Zealand. [63] [NAME] currently lives with two of his children — [NAME] and [NAME] — and has contact with his eldest son who lives independently in the same city. He has very limited contact with his three children from his [NAME] marriage. Counsel states (28 April 2026) that he typically meets with them two or three times per year and provides them with financial support when required. [NAME] does not have any grandchildren. [64] Over the years, [NAME] has spent significant periods in China, including five and a [NAME] years in the last 14 years. Despite China not permitting dual nationality, he has clearly been able to travel and live between New Zealand and China without impediment, including holding employment (he worked as a sales manager in China between 2015 and 2018). As a result, his relationships with both the appellant and his children in both countries have been conducted, in part, by distance.

14 [65] [NAME] maintained a connection with China over many years, five of his children have always resided here, and with his youngest arriving in March 2024, all of his children now reside here. It is understandable that he wishes for his wife to be reunited with him in this country, where their teenage son is settled and enrolled at school. Best interests of children affected [66] 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 Tipping J. [67] The best interests of any children affected must be considered having regard to their particular circumstances and the nature and quality of the relationships which they have in New Zealand. In this appeal, two children are affected — the appellant’s son [APPELLANT], and [NAME]’s youngest son from his [NAME] marriage, both of whom are 14 years old. (a) [NAME] [68] [NAME] is 14 years old. From birth, until his arrival in New Zealand in March 2024, he was in the constant care of the appellant in China, and in the appellant’s care for the periods when he visited China. [APPELLANT] states (23 April 2026) that he misses his mother every day and communicates with her often via [NAME]. He has been able to travel back to China twice since he arrived here in order to visit the appellant but says he feels very sad each time he has to leave her. The Tribunal is satisfied [NAME] has a close bond with his mother, and that, since he arrived in New Zealand, they have maintained their emotional connection through regular messaging and annual visits to China. [69] Since arriving in New Zealand two years ago, [APPELLANT] has lived with the appellant and his [NAME], [APPELLANT]. He states (23 April 2026) that his [NAME] has helped him to settle into life in New Zealand and helps him with his schoolwork, especially with English. In his own letter (23 April 2026), [NAME] describes his relationship with his younger [NAME] as close and supportive. He states he plays basketball with [NAME] and helps him with his homework.

15 [70] [NAME] is currently enrolled in Year 9 at his local high school. A recent report indicates he has good attendance records and is achieving well. [NAME] states (23 April 2026) that, while his [NAME] and father help him, he feels “something is missing” without his mother present. He believes he would be better able to focus on his studies with his mother present. [71] [NAME] has spent most of his life in the care of just one of his parents, although he has been able to maintain relationships with both his mother and father in the periods they have spent apart. It is understandable that he wishes for his family unit to be able to live together in one place. [72] The Tribunal considers that it is possible for the family to live together in China, as has happened in the past and where [NAME] has spent most of his life and is familiar. However, he is now a New Zealand resident who is entitled to remain in this country on a permanent basis. His parents made a deliberate decision to bring him to New Zealand and enrol him in the education system here, and the evidence indicates he has settled well over the last two years. During that time, he has also built a relationship with his [NAME] with whom he lives. The evidence indicates that [NAME] is well-settled in his new home, but for the presence of his mother. [73] The Tribunal finds that it is in [APPELLANT] best interests that the appellant be permitted to be present with him in New Zealand so that he can benefit from the support of both his parents, maintain his relationship with his [NAME], and continue his education in this country. (b) [NAME]’s third child from his [NAME] marriage [74] The Tribunal has been presented with little evidence regarding [NAME]’s 14-year-old son from his [NAME] marriage. What is known is that, after that marriage ended in 2014 (when the child was three years old), all three children from his [NAME] marriage remained in the day-to-day care of their mother. [75] [NAME] states (24 April 2026) he has “consistently fulfilled my responsibilities as a father to our children, both emotionally and financially.” In response to questions from the Tribunal, counsel stated (28 April 2026) that he has “limited but ongoing contact” with the children from his [NAME] marriage. [76] The evidence before the Tribunal suggests [NAME] does not have a close relationship with his youngest son from his [NAME] marriage. Given that, there is

16 no evidence to indicate that [NAME]’s relationship with his 14-year-old son from his [NAME] marriage necessitates a grant of residence to the appellant. Permanent bar to residence under Family ([APPELLANT]) category [77] Instructions F2.5.d.i and F2.10.10.a.i operate as a permanent bar to the appellant gaining residence under the Family ([APPELLANT]) category with her husband’s support. A [APPELLANT]-based visitor or work visa application may also be declined where a New Zealand-citizen or resident partner would not be eligible to support a [APPELLANT]-based residence application due to instruction F2.10.10 (see V3.15.5, effective 1 October 2024). Given this, the appellant does not have a pathway to residence, or even a reliable prospect of gaining a temporary visa based on their marriage. It would therefore seem likely that, if the appellant is not granted a resident visa, she will be unable to join [NAME] in New Zealand. [78] The appellant, her husband and their son are all citizens of China, therefore, they have the ability to relocate to China to be together. However, the Tribunal acknowledges that despite this ongoing connection to China, her husband has resided in New Zealand for much of the last 30 years and has five New Zealand citizen children here (although he has only very limited contact with three of those children). Further, the [NAME]’s son is now a New Zealand resident who is well settled in high school in New Zealand. [79] The appellant does not have a pathway to residence, or even a reliable prospect of gaining a temporary visa based on her marriage unless an exception to residence instructions is made. If the appellant is unable to enter New Zealand she will likely face continued separation from her husband and son. The appellant is without fault regarding the circumstances which render her husband an ineligible supporting partner, and yet it is she who bears the consequences of the permanent bar. Health and character requirements [80] Immigration New Zealand’s records indicate it was satisfied that the appellant had an acceptable standard of health for residence. [81] The appellant previously provided Immigration New Zealand with a police certificate from China (22 August 2024). Given the time that has passed since then, the Tribunal requested that she provide an updated police certificate from China and/or a statutory declaration to confirm she has not been convicted of (or

17 charged with) any offence in China. The appellant has provided the Tribunal with an updated police certificate from China (20 April 2026) which confirms she has no criminal record in China. Matters not assessed by Immigration New Zealand [82] Immigration New Zealand declined the application because [NAME] was not eligible to support a residence class visa application under the [APPELLANT] category. In doing so, it did not complete its assessment of the [NAME]’s [APPELLANT] and noted that it had not completed an assessment as to whether the [NAME] were living together, particularly given they have had periods of separation (F2.30.1). [83] The appellant is currently living in China, and [NAME] is living in New Zealand. [NAME]’s travel movements since May 2014 are set out above at [52]. [84] Counsel submits (28 April 2026) that the periods of physical separation between the appellant and [NAME] are primarily due to immigration barriers and are not indicative of the genuine and stable nature of their relationship. It is submitted that, as the appellant has no recent work history, she is not eligible for a work visa and, for the same reasons that mean [NAME] is ineligible to sponsor a residence class visa, he is also ineligible to sponsor her for a [APPELLANT]-based temporary visa. It is submitted that [APPELLANT] has chosen to live in New Zealand to maintain his relationships with his children and to work here to financially support his children and the appellant. International money transfer records have been provided, as have [NAME] records to demonstrate the financial support provided to the appellant and that the [NAME] have maintained contact when physically separated. [85] On the evidence provided, the Tribunal is satisfied there are genuine and compelling reasons for the [NAME]’s current physical separation. Over the past 12 years, they have lived together in the same place for a total of 5.5 years, and lived in different countries for 6.5 years. Notably, four years of the time spent apart encompassed the period when travel was restricted by the COVID-19 pandemic. The Tribunal is satisfied that the [NAME] have maintained a committed and stable relationship for the past 12 years and that, despite their current physical separation, they have remained committed to one another.

18 Discussion on special circumstances [86] The Tribunal has found that the appellant’s marriage to [APPELLANT] is genuine and stable. Although their relationship commenced when [NAME] was still living with his [NAME], and he had children with both the appellant and his [NAME] in 2011, his relationship with the appellant has been stable and committed since at least 2014. They have often spent time in different countries and, as they are all Chinese citizens, it would be possible for them to reunite as a family in that country. However, their relationship has endured for 12 years and, since the death of the appellant’s mother and, since their New Zealand-resident son has settled in New Zealand, the [NAME] wish to reunite the family unit in this country. The only impediment is the permanent bar on the appellant’s husband’s eligibility to sponsor the appellant’s application. The Tribunal is satisfied that neither the [NAME]’s relationship, nor [NAME]’s two previous marriages, were motivated by a desire to manipulate New Zealand’s [NAME]. [87] The Tribunal finds it is in [NAME]’s best interests for the appellant to reside in New Zealand so that both of his parents can provide him with support as he continues his New Zealand education. Alongside the genuine nature of the appellant’s relationship with [NAME], the permanent bar that his ineligibility presents for the appellant, and the genuine and compelling reasons for the [NAME]’s current physical separation, the Tribunal is satisfied that special circumstances exist. Conclusion on special circumstances [88] Having regard to circumstances of the appellant and her family the Tribunal finds that, considered cumulatively, the appellant does have special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to residence instructions. DETERMINATION [89] 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. [90] Pursuant to section 190(5) of the Act, the Minister of Immigration:

19 Certified to be the Research Copy released for publication.

[NAME] Member (a) must 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. [91] 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 [92] 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