Successful Appeal for Reassessment of Residence Application Due to Parenting Agreement

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207480 [NAME_1], [NAME_6]

Appellant: [redacted]

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

Before: [NAME_4] (Member)

Representative for the Appellant: [redacted]

Counsel for the Respondent: [redacted]

Date of Decision: 19 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 37-year-old citizen of Tonga whose application for residence under the Family (Partnership) category was declined by Immigration New Zealand. The application included her daughter, aged 17 years, and her son, aged 15 years, also citizens of Tonga. THE ISSUE [2] Immigration New Zealand declined the appellant’s residence application because it was not satisfied that the appellant had the right to remove her son from Tonga. She had provided two affidavits from the son’s father stating that he agreed to removing the son from Tonga but had not provided a court order or other legal documents, as required by instructions, showing that she had custody of him. [3] The Tribunal finds that Immigration New Zealand’s decision was correct. However, on appeal, the appellant produces a parenting agreement which states that she has day-to-day care of the son and that she and the son’s father agree that he will live in her day-to-day care in New Zealand. The Tribunal finds that this

2 agreement constitutes a particular event that materially affects the appellant’s eligibility under instructions and that it is fair, in all the circumstances, to cancel the decision and refer the application back to Immigration New Zealand for a new assessment.

BACKGROUND [4] The appellant was born in Tonga. She married her first husband (the son’s father) in Tonga in 2008, and the couple had two children, the daughter and son, together. The son has never travelled to New Zealand. [5] The appellant and her daughter travelled to New Zealand in June 2012 on one-month limited purpose visas to attend a birthday celebration. The Tribunal understands the son’s father travelled with them while the son remained in Tonga with the appellant’s sister and her husband. The appellant and her daughter failed to depart New Zealand before those visas expired and remained living here, unlawfully, until 2023. [6] Shortly after arriving in New Zealand 2012, the appellant divorced the son’s father. He currently lives in Australia. [7] In April 2022, the appellant married her current husband. He is a pastor at her church, a widower with six children and a New Zealand permanent resident. [8] In October 2023, the appellant was granted a work visa, and her daughter was granted a student visa under section 61 of the Immigration Act 2009 (the Act), following a successful request for Ministerial intervention. [9] In August 2024, the appellant was granted a one-year partnership-based work visa, on the basis of her relationship with her husband. The daughter was granted a concurrent student visa as the dependent of a worker. The appellant currently holds a two-year partnership-based work visa, valid to August 2027, and the daughter holds a student visa tied to the currency of the appellant’s visa. Residence Application [10] On 23 September 2024, the appellant made an online application under the Family (Partnership) category of residence instructions, supported by her husband.

3 [11] On 3 and 28 April 2025, Immigration New Zealand raised concerns that the appellant did not have custody of the son (and therefore the right to remove him from Tonga), as required by R2.1.45. [12] On 10 May 2025, the appellant provided an affidavit (9 May 2025) from the son’s father which recorded that the appellant has custody of the son, who lived with her family in Tonga. He gave his consent for the son to live in New Zealand as a resident. [13] By letter dated 15 May 2025, Immigration New Zealand advised that the affidavit from the son’s father was insufficient to demonstrate that she had custody, as required by the first limb of R2.1.45.c.iii. [14] It appears, from correspondence between the appellant’s then representative and Immigration New Zealand that, in response, the representative provided an incomplete and unsigned statutory declaration from the son’s father, in which he declared that he granted the appellant permission to [NAME_2] the son to New Zealand and apply for a resident visa, and that he agreed both the son and the daughter could remain in New Zealand in the care of their mother (the appellant). [15] Also provided were: an affidavit (28 May 2025) from the appellant, in which she stated, among other things, that she was “applying for the custody order of [the son] in light of applying for a residency visa for him for a better future”; and a Family Court order dissolving the appellant’s marriage to her first husband in 2012. Immigration New Zealand’s Decision [16] On 10 June 2025, Immigration New Zealand declined the appellant’s application because it was not satisfied that she had full custody of the son, as required by R2.1.45 of instructions. Neither the affidavit from the appellant nor the second affidavit from the son’s father were legal documents that showed the appellant had custody of the son. [17] Without evidence that the appellant had custody of her son, the application could not succeed as she had not demonstrated that she had the right to remove him from Tonga.

4 After Immigration New Zealand’s Decision [18] Immigration New Zealand’s electronic records show that, on 2 July 2025, it received a reconsideration request from the appellant, along with supporting documents including a “parenting agreement”. [19] On 18 July 2025, the appellant emailed Immigration New Zealand a “custody letter” for her son, in which she stated that she had couriered a copy, along with other information, to Immigration New Zealand on 1 July 2025. [20] On 21 July 2025, Immigration New Zealand advised that the appellant’s residence application had been earlier declined and referred her to her representative. It then, on 30 July 2025, advised that it had no ability to reconsider a declined residence application decision. It reminded the appellant of her appeal rights to the Tribunal. STATUTORY GROUNDS [21] 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. [22] 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 [23] On 22 July 2025, the appellant lodged this appeal on the ground that her circumstances are special such that an exception to the residence instructions should be considered.

5 [24] In support of the appeal, the appellant provided, in addition to documents already provided to Immigration New Zealand, a parenting agreement (20 June 2025) between the appellant and the son’s father and a letter (25 June 2025) from the appellant’s stepdaughter. Further information provided on appeal [25] Neither the parenting agreement nor the letter from the appellant’s stepdaughter existed at the time of Immigration New Zealand’s decision to decline the appellant’s residence application. As such, they cannot be considered by the Tribunal in its assessment of whether Immigration New Zealand’s decision was correct (see sections 189(1) and 189(3)(a)). [26] However, the Tribunal will [NAME_2] this evidence into account in its assessment as to whether there has been a “particular event” which has occurred after the decision was made and which materially affects the appellant’s eligibility (section 189(6)). The Tribunal’s discussion of whether this exception applies is set out below at [38]. ASSESSMENT [27] 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. [28] 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 as to whether the further information provided on appeal regarding the parenting agreement between the appellant and the son’s father constitutes a particular event that materially affects her eligibility under residence instructions and if it is fair to cancel the decision and refer it back to Immigration New Zealand. Whether the Decision is Correct [29] The application was made on 23 September 2024 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand

6 declined the application because the appellant had not demonstrated that she had custody of the son and therefore had the right to remove him from Tonga. Custody of dependent children [30] Applicants who include children under 16 in their residence application and who are separated or divorced from the other parent must satisfy Immigration New Zealand that they have the right to remove those children from their country of residence: R2.1.45 Children under 16 whose parents are separated or divorced a. If the parents of a child aged under 16 included in an application for a residence class visa are separated or divorced, the applicant parent must have the right to remove the child from the country in which rights of custody or visitation have been granted; or if no such rights have been granted, from the country of residence. b. Such children cannot be included in an application unless the applicant parent produces satisfactory evidence of their right to remove the child from the country in which the rights of custody or visitation have been granted or if no such rights have been granted, from the country of residence. c. Except where (d) applies, evidence of the right to remove the child from the country in which rights of custody or visitation have been granted must include: i. legal documents showing that the applicant has custody of the child and the sole right to determine the place of residence of the child, without rights of visitation by the other parent; or ii. a court order permitting the applicant to remove the child from its country of residence; or iii. legal documents showing that the applicant has custody of the child and a signed statement from the other parent, witnessed in accordance with local practice or law, agreeing to allow the child to live in New Zealand if the application is approved. d. Where an immigration officer is satisfied that: i. by virtue of local law, the applicant parent has the statutory right to custody of the child; and ii. it is not possible or required under that local law to obtain individualised legal documents to verify that custodial right, the child may be included in the application. Effective 07/05/2018 [31] The Tribunal (differently constituted) in [NAME_5]) [2013] NZIPT 201027 at [33], explained the rationale for R2.1.45 as follows: The purpose of R2.1.45 is to ensure that where one parent seeks to include a dependent child in their application for New Zealand residence, the guardianship

7 rights of the other parent are respected and preserved (where the parents are separated or divorced). More specifically, the instructions recognise the responsibility each parent has to determine their child’s place of residence, unless a guardian’s powers are lawfully restricted in some way. To this end, R2.1.45 requires an applicant parent to have properly established legal authority to relocate their child to New Zealand. Failure to satisfy R2.1.45 [32] The appellant’s marriage to the son’s father ended in 2012. Because the son is aged under 16 years, the appellant was required to demonstrate that she had the right to remove him from Tonga by meeting one of three alternative evidential requirements, as set out in R2.1.45.c.i, .ii or .iii. In this respect, the Tribunal notes that the former representative asserted that the appellant had the statutory right, by local law in Tonga, to custody of the child (R2.1.45.d.i) but that the accompanying evidence was the appellant’s affidavit and was not demonstrative of this right. [33] In total, the appellant’s evidence of her right to remove the son from Tonga consisted of an affidavit from herself and an affidavit and incomplete and unsigned statutory declaration from the son’s father. Immigration New Zealand correctly identified that these documents were insufficient to meet any of the evidential requirement alternatives at R2.1.45.c. The appellant did not provide legal documents showing that she had custody of the son and the sole right to determine his place of residence without his father having visitation rights (R2.1.45.c.i). Nor did she produce a court order permitting her to remove the son from Tonga (R2.1.45.c.ii). [34] The appellant’s evidence did, on its face, appear to satisfy half of the requirements at R2.1.45.c.iii. That is, the second limb of that instruction required a signed statement from the son’s father, witnessed in accordance with local law or practice, in which he agreed the son could live in New Zealand if granted residence. The son’s father’s 9 May 2025 affidavit was witnessed by a “Commissioner for taking affidavits in the Supreme Court of South Australia”, which complies with the requirements of the Oaths Act 1936 (SA) (see Government of South Australia Attorney-General’s Department Authorised witnesses at wwww.agd.sa.gov.au). He recorded, in that affidavit, his consent for the son to be granted New Zealand residence and to live here with the appellant. [35] However, the appellant’s evidence did not satisfy the first limb of R2.1.45.c.iii which required legal documents showing that she had custody of the son. Neither the appellant’s nor the son’s father’s affidavit amount to legal

8 documents showing that the appellant has custody of the son. The nature of the affidavits is that each recorded the appellant’s and the son’s father’s respective understanding, and evidence, of the son’s custody arrangements. An affidavit does not constitute an agreement between two parties and is insufficient to demonstrate that the appellant had custody of the son. This insufficiency is clearly evidenced in the fact that the affidavits in question contain contradictory information regarding the son’s custody arrangements: while the son’s father’s affidavit records that the appellant has custody of the son, the appellant’s affidavit records that she is applying for custody of him. [36] Similarly, the son’s father’s statutory declaration is unable to show that the appellant had custody of the son (notwithstanding that it was not completed or signed). A statutory declaration is used to declare that something is true; it does not constitute an agreement between two parties. Conclusion on correctness [37] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application for residence was correct. She did not meet the evidentiary requirements of R2.1.45 to establish that she had custody of the son and had the right to remove him from Tonga. Particular Event [38] On appeal, the appellant has provided further information, being a signed parenting agreement (20 June 2025), pursuant to section 40 of the Care of Children Act 2004, between the appellant and the son’s father. The agreement records that the appellant has day-to-day care of the son and that the son will relocate from Tonga to New Zealand, where he will live under the day-to-day care of the appellant. [39] As set out above, the Tribunal is unable to consider information that was not provided to Immigration New Zealand prior to the decision being made on the application (section 189(1)). However, the Act provides a relevant exception at section 189(6), which states:

9 189 Use of further information in appeals under section 187 … (6) The Tribunal may, if it considers it fair in all the circumstances to do so, determine the appeal in the manner set out in section 188(1)(d) where— (a) it comes to the attention of the Tribunal that any particular event has occurred after the time at which the Minister or the immigration officer made the decision on the appellant’s visa application; and (b) the Tribunal is satisfied that the event materially affects the applicant’s eligibility under residence instructions. [40] Section 188(1)(d) of the Act allows the Tribunal to note the correctness of, but to cancel, Immigration New Zealand’s decision and to refer the appellant’s application back to it for reassessment as if a new application had been made that included the additional information properly provided to the Tribunal. [41] The Tribunal is satisfied that the parenting agreement constitutes a particular event that has occurred some 10 days after Immigration New Zealand made its decision. It is also satisfied that the parenting agreement materially affects the appellant’s eligibility under residence instructions. This is because the appellant now has a legal document which states that she has day-to-day care (being the term used in the Care of Children Act rather than “custody” as used in instructions) of the son. The parenting agreement also states that the son may move to New Zealand to live with the appellant, in line with the son’s father’s earlier affidavit. It is signed and dated by both the appellant and the son’s father, thereby accepting the terms of the agreement. This document means that the appellant may now be in a position to demonstrate that she meets both limbs of the evidentiary requirements at R2.1.45.c.iii. [42] It is evident that the appellant attempted to meet the evidential requirements of R2.1.45.c.iii during the course of her application by providing the affidavits and incomplete statutory declaration. Instruction R2.1.45.c.iii does not define “legal documents” and Immigration New Zealand, while highlighting the instruction (and limb thereof) that the appellant was yet to meet, did not specify examples of the types of legal documents, specifically, were required to satisfy this instruction. Noting that the affidavits are formal documents – being written, signed and witnessed statements which can be used in court proceedings – although insufficient to satisfy the evidentiary requirements at R2.1.45.c.iii, and that the appellant acted promptly to obtain the parenting agreement after the decline decision, the Tribunal considers that it is fair in all the circumstances to determine the appeal in the manner set out in section 188(1)(d) of the Act.

10 Certified to be the Research Copy released for publication.

[NAME_4] Member Conclusion on particular event [43] Given the factors set out above, the Tribunal finds that a particular event has occurred after Immigration New Zealand made its decision that materially affects the appellant’s eligibility and that it is fair in all the circumstances to determine the appeal in the manner set out in section 188(1)(d) of the Act. DETERMINATION [44] This appeal is determined under section 188(1)(d) of the Immigration Act 2009. The Tribunal notes the correctness of the original decision of Immigration New Zealand in terms of the applicable residence instructions on the basis of the information provided to Immigration New Zealand before the time of the decision. However, the Tribunal cancels the decision and refers the application back to the chief executive of the Ministry of Business, Innovation and Employment for consideration by Immigration New Zealand, as if a new application had been made, that included any additional information properly provided to the Tribunal. [45] The Tribunal emphasises this does not mean the appellant is entitled to residence. It means the application will be the subject of a new assessment. Further, this requires an assessment under the residence instructions which applied to the appellant’s application when it was made, not current instructions. [46] The appeal is successful in the above terms. Order as to Depersonalised Research Copy [47] 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_4]” [NAME_4] Member