Tribunal Allows Humanitarian Appeals Against Deportation for Samoan Citizens

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 507223−224 [NAME], [NAME] [NAME]: LUALUA, [RESPONDENT], [RESPONDENT]

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

Before: [NAME] (Member)

Representative for the [NAME]: [NAME] ([NAME])

Counsel for the Respondent: [redacted] 21 April 2026

__________________________________________________________________ DEPORTATION (NON-RESIDENT)

DECISION __________________________________________________________________ [1] These are humanitarian appeals by [NAME], a brother and sister (aged 25 and 20), against their liability for deportation which arose when they became unlawfully present in New Zealand. [2] The Tribunal has heard these appeals together and has issued a single decision, as provided for by section 235 of the Immigration Act 2009 (“the Act”). THE ISSUES [3] The primary issue for the Tribunal is whether there are exceptional humanitarian circumstances that would make it unjust or unduly harsh to deport the [NAME] having regard to factors including the consequences for them of a return to [NAME], where they would not have access to the family support that they have come to rely on in New Zealand. A secondary issue is whether it would be contrary to the public interest for the [NAME] to reside permanently in New Zealand.

2 [4] For the reasons set out below, the Tribunal allows the appeals and directs the grant of resident visas to the [NAME].

BACKGROUND [5] The [NAME]’ [NAME]-citizen parents are divorced. Their father lives in Australia. Their mother moved to New Zealand in 2010 and lives here with her current husband (the [NAME]’ [NAME]) and the [NAME]’ siblings (a brother aged 15 and a sister aged 21) — these family members have the right to reside permanently in New Zealand. [6] When their mother moved to New Zealand, the [NAME] stayed in [NAME] with their [NAME] and [NAME]. The [NAME] came to New Zealand in December 2018 and have lived here since with their [NAME]. [7] The [NAME] have held numerous temporary visas while in New Zealand but, at times, did not hold visas and so spent some periods here unlawfully. According to Immigration New Zealand’s electronic records, their [NAME] sometimes struggled to afford the fees for their temporary visa applications or to lodge their applications in accordance with the requirements of immigration instructions. In 2019, residence applications were lodged for the [NAME] under the Family (Dependent Child) category instructions, but they were not accepted as [NAME] and [NAME] could not afford to pay the application fees. [8] The [NAME] most recent temporary visas ended on 2 June 2025 and then, on 4 June 2025, they became unlawfully present in New Zealand. On 9 July 2025, the [NAME] lodged these humanitarian appeals with the Tribunal. STATUTORY GROUNDS [9] The grounds for determining a humanitarian appeal are set out in section 207 of the Act: (1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that— (a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and

3 (b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand. [10] The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Immigration Act 1987, the almost identical predecessor to section 207(1): (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand: Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]. THE [NAME]’ CASE [11] On appeal, [NAME] initially made submissions (contained within the Notice of Appeal forms) and the representative then made written submissions (7 August 2025) which, read together, can be summarised as follows: (a) There are exceptional humanitarian circumstances that would make it unjust or unduly harsh for the [NAME] to be deported. The [NAME]’ [NAME] with whom they lived in [NAME] has died and their [NAME], who also provided them with a home there, is now unwell and cannot support them. They no longer have any family in [NAME] with whom they could live on a return. Their mother, [NAME] and two siblings live permanently in New Zealand. This immediate family unit would find separation to be challenging. (b) It would not be contrary to the public interest to allow the [NAME] to remain living in New Zealand. They are both of good character. [12] The following evidence was provided in support of the above submissions: (a) Copies of the [NAME]’ and their mother’s passports, [NAME]’s birth certificate, and previous temporary visa approvals in relation to the [NAME]. (b) A statutory declaration (21 October 2014) from the [NAME]’ father. (c) A letter (29 June 2021) from one of [NAME]’s sports coaches. (d) A school report (2022) and certificates (2021 and 2022) from [NAME]’s previous secondary school in New Zealand.

4 [13] By letter dated 23 March 2026, the Tribunal requested further information from the [NAME] and, as part of this, it set out questions on specific matters. [14] On 8 April 2026, the representative produced submissions addressing the Tribunal’s questions. In summary, the representative submits that the [NAME] have no contact with their father. They have only ever lived with their [NAME] while in New Zealand. Their [NAME], who receive a small joint income, and their [NAME], who also has an income, provide the [NAME] with financial support. The [NAME] are unable to work in paid employment or study because they do not hold visas. They attend a [NAME] and play in a sports team. If deported, this would separate the [NAME] from their immediate family unit and this would be very hard for them all. The [NAME] have no family in [NAME] able to accommodate them or to provide any other support. They would have no employment prospects in [NAME]. If permitted to reside lawfully in New Zealand, the [NAME] would undertake tertiary studies. [15] The representative also provides the following further evidence: (a) Letters (30 and 31 March 2026) from two bishops of the [NAME]’ [NAME] in New Zealand and the executive officer of a New Zealand sports association in which the [NAME] are members. (b) A medical report (26 March 2026) from a [NAME] relating to the [NAME]’ [NAME] with whom they had previously lived in [NAME]. (c) Medical test results (1 April 2026) relating to the [NAME]. ASSESSMENT [16] The Tribunal has considered the above submissions and documents, Immigration New Zealand’s files in relation to various visa applications made by the [NAME], and Immigration New Zealand’s relevant electronic records. Whether there are Exceptional Circumstances of a Humanitarian Nature [17] Exceptional circumstances of a humanitarian nature “must be well outside the normal run of circumstances” and, while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”: Ye v Minister of Immigration, at [34].

5 [18] The Tribunal’s focus at this part of the assessment must be on the consequences or effects of deportation and whether these amount to exceptional humanitarian circumstances: Minister of Immigration v Q [2020] NZCA 288 at [31]. The [NAME]’ circumstances in, and ties to, New Zealand [19] These [NAME]-citizen [NAME] are brother and sister aged 25 and 20 years respectively. They lived in [NAME] under the care of their [NAME] and [NAME] when their mother, a [NAME] and now New Zealand permanent resident, moved to New Zealand in 2010. The mother resides in New Zealand with her husband (the [NAME]’ [NAME]) and the [NAME]’ [NAME] and [NAME] — like [NAME], the [NAME] and these siblings have the right to reside permanently in New Zealand. The representative submits that the [NAME]’ father moved to Australia while the [NAME] were living in [NAME] and they do not have contact with him. [20] The [NAME] came to New Zealand in 2018 when [NAME] was 18 years old and [NAME] was 12 years old. They have lived here continuously since arriving, which is a period of almost seven and a half years. They have lived with their [NAME] throughout their time here. The Tribunal recognises the adolescent years as a pivotal life stage and that the sister spent her entire teenage years in New Zealand. During their time here, the [NAME] have developed as individuals within the New Zealand social setting. [21] The [NAME] have previously held student visas, allowing them to study in New Zealand, and information on appeal from [NAME]’s former secondary school in New Zealand shows that she was a good and hardworking student. The [NAME] would like to complete tertiary studies in New Zealand, to prepare for eventual careers, and the sister has previously been accepted into a travel and tourism course. However, because they do not hold visas, they are unable to continue with their studies or work in paid employment. The representative submits that the [NAME] receive a small joint income and they are financially supporting the [NAME] as best they can. The [NAME]’ [NAME] is in employment and also helps with their costs. [22] The [NAME] are involved in local sports. They are also members of a [NAME]. Letters on appeal from two bishops show that the [NAME] participate in volunteer work through the [NAME] and [NAME] is also

6 involved in spiritual studies. One bishop states that the [NAME] are “truly loved and valued by our [NAME]”. [23] Having regard to the above, the Tribunal finds that the [NAME] have become firmly settled in New Zealand over what, for them as young people, will be viewed as a lengthy period of time. They have strong familial ties to New Zealand, through their immediate family unit, as well as positive and enduring community and social ties to the country, through their [NAME] and sporting activities. Consequences of returning to [NAME] or remaining in New Zealand [24] If the [NAME] had to return to [NAME], they would be separated from their mother, [NAME], [NAME] and [NAME] who would remain living in New Zealand and could not reasonably be expected to move to [NAME]. The mother, [NAME] and [NAME] have lived in New Zealand for more than 15 years (almost all this brother’s life) and the [NAME] has lived here for almost seven and a half years. These family members are settled in New Zealand. They have established a home here, the [NAME] has only ever been educated in New Zealand and the mother, [NAME] and [NAME] receive incomes here. The mother, [NAME] and these two siblings have the right to reside in New Zealand permanently and to have access to the benefits that come with this right, including public welfare and education. [25] The [NAME] have never lived independently, having a history of living with, and being supported by, their [NAME], [NAME], and their [NAME]. If they returned to [NAME], they would no longer have access to such support. As noted, their [NAME] would remain in New Zealand. Their [NAME] has now died and their [NAME] in [NAME] is unwell and unable to support them, as confirmed by a medical report provided on appeal. The representative submits, and the Tribunal accepts, that, while the [NAME] have other extended family members living in [NAME], these family members are focused on supporting their own immediate families and some also have medical conditions. They cannot provide the [NAME] with any level of support in [NAME]. The Tribunal would add that the [NAME] have no enduring relationships with these family members, having moved to New Zealand when [NAME], especially, was very young, and having not visited [NAME] since they arrived in New Zealand in 2018.

7 [26] The Tribunal finds that, if the [NAME] had to return to [NAME], they would no longer have direct access to emotional and practical support from their family in New Zealand. They would be returning without any place to live. They would not have any close family members available to provide them with practical support to help them reintegrate, which would be especially important for [NAME] who left [NAME] as a child. While now young adults, they have never lived independently or worked in skilled employment and so they would have limited prospects of supporting themselves for the foreseeable future in a country in which they now retain few connections. Their [NAME] can get by with supporting them in New Zealand on a modest income but then costs can be managed, to some extent, through sharing things like the couple’s housing. Having considered the evidence, the Tribunal is not satisfied that the [NAME], or the [NAME]’ [NAME], could provide the [NAME] with the level of financial support that they would need in order to set up and operate a new household in [NAME] and to manage their other costs for an indeterminate period. [27] If permitted to remain in New Zealand, the [NAME] would be able to resume studying and then they could seek employment, all while continuing to receive emotional, financial and practical support from their immediate family unit. Pathways to visas [28] The [NAME] have experienced problems securing visas in New Zealand due to their reliance on their [NAME] who have not always been able to afford the application fees or manage the immigration processes involved. [29] [NAME] no longer has a direct pathway to residence in New Zealand under residence instructions because, at 25 years old, he now falls outside the age range of the Family (Dependent Child) category instructions. [30] [NAME] is still within the age range of the above category, a previous attempt to gain residence under this category (along with [NAME]) was unsuccessful because the [NAME] could not afford the application fees. Given the sister’s reliance on others and her challenging immigration history, the Tribunal is left uncertain as to whether an application could be made so that she would be able to gain residence under the Family (Dependent Child) category. Even if she could gain residence in this way, this would result in a split immigration outcome between her and [NAME] who, as noted, has no direct pathway to residence under instructions. Given the

8 closeness of these two siblings, who have always lived together, such an outcome would be contrary to their interests. Their interests would be served by having a shared and certain immigration outcome, so that they can plan for their futures, and by remaining with their family in New Zealand, where they are now settled. Best interests of the [NAME] [31] The best interests of the [NAME]’ 15-[NAME]-old New Zealand permanent resident brother are to be treated as a primary consideration given that he is under 18 years old: Articles 1 and 3(1) of the 1989 Convention on the Rights of the Child. [32] The Tribunal has limited evidence as to the circumstances of this brother. However, what is clear is that he has spent most his life in New Zealand and, at 15 years old, he is at an important stage in terms of his education and development. Any serious disruption to the key source of stability in his life, his immediate family, such as through the [NAME]’ deportation, would undermine his best interests. Conclusion on exceptional humanitarian circumstances [33] These [NAME] came to New Zealand aged 12 and 18 years and they have lived here for almost seven and a half years which, for them as young people, can be considered a lengthy period of time. They have become firmly settled in New Zealand with their mother, [NAME], [NAME] and [NAME]. The [NAME] are the only members of this immediate family unit without the right to reside permanently in New Zealand. [34] If required to return to [NAME], the [NAME] would be separated from their immediate family members and would no longer have access to the emotional, practical and financial support that they depend on from their immediate family, especially their [NAME]. While they previously lived with their [NAME] and [NAME] in [NAME], the former is deceased and the latter no longer has the ability to support them. The [NAME] would have no place to live and no close family members available to provide them with practical support to help them reintegrate into [NAME]. While now young adults, they have never lived independently or worked in skilled employment, and they have not lived in [NAME] since they were 12 and 18 years old. They would have limited prospects of supporting themselves for the foreseeable future in a country in which they now retain few enduring connections.

9 [35] A return to [NAME] would be seriously disruptive to the [NAME]’ now settled lives in New Zealand and to the lives of their family residing permanently in New Zealand. It is in the [NAME]’ interests, the interests of their immediate family unit and the best interests of their youngest sibling that they remain in New Zealand. [36] For the above reasons, considered on a cumulative basis, the Tribunal finds that there are exceptional circumstances of a humanitarian nature in this case. Whether it would be Unjust or Unduly Harsh to Deport the [NAME] [37] Whether deportation would be unjust or unduly harsh must be assessed in light of the reasons why the [NAME] are liable for deportation and involves a balancing of those considerations against the consequences of deportation: see [NAME] v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248, at [9]. [38] The [NAME] are liable for deportation because they became unlawfully present in New Zealand in June 2025. They have previously spent other periods here unlawfully. In general terms, remaining here beyond the expiry of a temporary visa can be said to undermine the integrity of the immigration system. Moderating that, in this case, is the fact that the [NAME] have relied on their [NAME] to manage their immigration affairs since they arrived in New Zealand when [NAME] was especially young. It is evident that this couple has worked hard to try and maintain visas for the [NAME] but have been let down, at times, by a lack of funds to pay the application fees or a lack of knowledge about immigration processes. Often, when here unlawfully, the Minister of Immigration has regularised the [NAME]’ immigration status by granting temporary visas under section 61 of the Act. The Tribunal notes that, on becoming unlawfully present in June 2025, appeals were lodged with it so that the [NAME]’ circumstances could be assessed through a humanitarian lens. [39] Balanced against the reason why the [NAME] are liable for deportation are the exceptional humanitarian circumstances identified above. In summary, if the [NAME] were deported to [NAME], they would no longer have access to the members of their immediate family unit who would remain in New Zealand. The [NAME] would have no place to live and no close family members or contacts available to provide them with practical support to help them reintegrate into [NAME]. Having never lived independently or worked in skilled employment, or lived in [NAME] since they were 12 and 18 years old, they would have limited prospects of supporting themselves for the foreseeable future in [NAME].

10 Conclusion on injustice or undue harshness [40] Weighing the reason why the [NAME] are liable for deportation against the consequences of their deportation, the Tribunal is satisfied that it would be unjust or unduly harsh for the [NAME] to be deported from New Zealand. Public Interest [41] Where the Tribunal has determined that there are exceptional humanitarian circumstances which would make it unjust or unduly harsh for the [NAME] to be deported, it must also be satisfied that it would not be contrary to the public interest to allow the [NAME] to remain in New Zealand. This involves the weighing of those factors which would make it in the public interest for the [NAME] to remain against those which make it in the public interest that they leave: [NAME] v Chief Executive of Department of [NAME] ([NAME], CIV-2004-485-102, 30 November 2004) at [41]. International obligations [42] There is a public interest in the upholding of New Zealand’s international obligations, including with regard to the best interests of children: Article 3(1) of the Convention on the Rights of the Child.

For the reasons set out above, it is in the best interests of the [NAME]’ [NAME] that the [NAME] remain in New Zealand. [43] The Tribunal also notes the importance of family unity: see for example Article 23(1) of the 1966 International Covenant on Civil and Political Rights. While the [NAME]’ immediate family unit has previously been separated, the [NAME] are not responsible for the decisions that led to this and the family has been reunited in New Zealand since 2018. As matters currently stand, it is in the [NAME]’ interests that their immediate family unit remain together in New Zealand given their dependence on their family, especially their [NAME], and their anticipated circumstances if separated from their family. Unlawfully present in New Zealand [44] The integrity of New Zealand’s immigration system can be undermined by migrants remaining here unlawfully, which is contrary to the public interest. However, as explained above, there are moderating factors in this particular case.

11 Character [45] It is in the public interest that migrants in New Zealand are of good character. The [NAME] have declared on appeal that they have no convictions. The Tribunal has received clear New Zealand Ministry of Justice conviction history checks (10 April 2026) for the [NAME]. [NAME] previously provided Immigration New Zealand with a clear [NAME] police certificate (28 May 2021) and, given that he has not returned to [NAME] since that time, the Tribunal has not requested an updated certificate. It is not clear whether [NAME] has provided Immigration New Zealand with a [NAME] police certificate but, given that she arrived in New Zealand at 12 years of age (an age where police certificates are not required under instructions) and has remained here, the Tribunal does not consider it necessary for her to produce a [NAME] police certificate. The Tribunal is satisfied both [NAME] are of good character. Health [46] It would be contrary to the public interest for the [NAME] to present a burden to [NAME]. Immigration New Zealand has not previously made any adverse health findings against either appellant. The Tribunal has no evidential basis for finding that the [NAME] present a burden to [NAME] at this time or in the foreseeable future. Conclusion on public interest [47] The Tribunal finds that, in all the circumstances, it would not be contrary to the public interest for the [NAME] to remain in New Zealand permanently. DETERMINATION AND

ORDER [48] For the reasons given, the Tribunal finds that there are exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for the [NAME] to be deported from New Zealand. The Tribunal also finds that it would not in all the circumstances be contrary to the public interest for the [NAME] to remain in New Zealand on a permanent basis.

12 Certified to be the Research Copy released for publication.

[NAME] Member Order for Grant of Visas [49] Pursuant to section 210(1)(a) of the Act, the Tribunal orders that the [NAME] be granted resident visas. [50] The appeals are allowed in the above terms. “[NAME]” [NAME] Member