Tribunal Allows Residency for Overseas Adoptees Seeking Family Reunification

OUTCOME: Allowed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207473-474 [NAME], [NAME]: [NAME] (Dependent Child)

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

Before: [NAME] (Member)

Counsel for the [NAME]: [NAME]

Counsel for the Respondent: [redacted] 9 June 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The [NAME] are a 16-year-old citizen of the Democratic Republic of Congo (DRC) ([NAME]), and a 17-year-old citizen of South Africa and the DRC ([NAME]). Their individual applications for residence under the Family (Dependent Child) category were declined by [NAME]. [2] The [NAME]’ New Zealand-citizen [NAME] father ([NAME]) is acting as their responsible adult for the purposes of these appeals (as per section 375 of the Immigration Act 2009 (the Act)). [3] Pursuant to section 235 of the Act, these appeals have been heard together and a single decision issued. THE ISSUE [4] [NAME] declined the [NAME]’ residence applications because it was not satisfied that the adoption orders issued by the DRC Children’s Court had the same effect as New Zealand adoption orders, because it found that the [NAME]’ ties with their [NAME] family were not severed.

2 [5] The principal issue for the Tribunal is whether [NAME] correctly declined the applications. [6] For the reasons that follow, the Tribunal finds that [NAME]’s decisions were incorrect. It finds that the evidence establishes that the DRC Children’s Court adoption orders do satisfy instructions by having the same effect as New Zealand adoption orders. The Tribunal accordingly orders that the decisions be reversed, and that [NAME] grant residence class visas to the [NAME]. [NAME] [7] [NAME] is aged 17. She was born in South Africa but is also a citizen of the DRC. When she was approximately four years old (2013), her father was killed in a car accident. [NAME], her mother and two siblings moved in with her father’s cousin, [NAME], and his wife in South Africa. [NAME] assumed responsibility for her and took on the role of her paternal uncle. [8] Two years later, in 2015, [NAME] and his wife left South Africa for New Zealand. [NAME] mother took her and her siblings back to the DRC. Her mother’s mental health meant that she was not able to care for [NAME] who went to live with [NAME] sister (on [NAME] direction), her husband and five children. She continued to be supported financially and emotionally by [NAME] and his wife, and subsequently lost contact with her mother. [9] In January 2018, the family had a meeting and agreed that [NAME] should legally adopt [NAME]. On 25 May 2018, the local Children’s Court made an adoption order with respect to [NAME] in favour of [NAME], the [NAME] having consented. [NAME] remained living with [NAME] sister in the DRC. [NAME] [10] [NAME] was born in 2009 and is aged 16. [NAME] had been in a relationship with [NAME] mother at the time of his conception, however they had subsequently been separated and lost contact. [NAME] only came to know of [NAME] existence in 2016, after he was placed by his mother in the care of her family members when she became unable to care for him, and [NAME] was told that they were father and son. At

3 that time, [NAME] assumed responsibility for [NAME] and arranged for him to move into his ([NAME]) sister’s home (with her and her family and [NAME]). [NAME] and his wife commenced financially supporting him, and they have remained in close contact since. [11] [NAME] and [NAME] understood themselves to be [NAME] and son until the DNA tests (discussed below) revealed otherwise. As noted below, to formalise their relationship when the DNA testing was confirmed, [NAME] applied to adopt [NAME]. On 25 November 2024, the local Children’s Court made an adoption order with the [NAME]’s consent. [NAME] and his wife [12] [NAME] and his wife came to New Zealand in 2015 seeking asylum. These claims were unsuccessful, however in January 2017, they were granted [NAME] visas upon a successful humanitarian appeal. [NAME] had been declared in their immigration applications. [13] In 2023, [NAME] and his wife obtained citizenship of New Zealand. In 2023, [NAME] returned to the DRC to visit the children and, in 2025, both he and his wife returned to see them. The evidence is that they communicate with the children daily and have done so for years. The couple are settled in a small provincial New Zealand town and both hold employment. Residence Applications [14] On 28 January 2020, an application under the Family (Dependent Child) category of residence instructions was made on behalf of [NAME]. This included the signed consent of his [NAME] (15 June 2018) to him migrating to New Zealand. The application was premised on the understanding that [NAME] was [NAME] [NAME] son. [15] On 19 March 2020, an application under the Family (Dependent Child) category of residence instructions was made on behalf of [NAME] based on [NAME] being her [NAME] father. Family (Dependent Child) category instructions require that, when an application is premised on an overseas legal adoption of a child by a [NAME] or [NAME], it must be established that the overseas adoption order is legally valid and has the same effect as a New Zealand adoption order.

4 [NAME]’s Verification [16] Due to the COVID-19 pandemic and verification delays, the processing of the applications was protracted. [17] In February 2021, [NAME] obtained information from its [NAME] confirming the process for obtaining an adoption order in the DRC and the laws governing the practice. It was unclear to the Unit whether an [NAME] was required to be present in the DRC when the order was made. It noted that the DRC is not a signatory to the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Adoption Convention) and therefore there is a risk of child trafficking and illegal or irregular practices around adoption from the DRC. Additionally noted were concerns around document and identity fraud and corruption specifically related to such adoptions and that corruption is endemic in the DRC. [18] The [NAME] provided [NAME] with a “partial unofficial translation” of the [NAME] but recorded that they should “organise for a formal translation if required”. [19] In September 2021 [NAME] sought DNA testing to establish the relationship of the [NAME] to [NAME]. DNA test results (14 April 2022) excluded a [NAME]-child relationship between [NAME] and [NAME] and excluded a [NAME] relationship between [NAME] and [NAME]. [NAME]’s Concerns and Then Representative’s [NAME] [20] On 16 May 2022, [NAME] wrote concerned that [NAME] did not have an eligible [NAME] supporting his application because the DNA test results had established that he was not the [NAME] son of [NAME]. The results were not accepted by the family and so further testing was arranged. [21] Results from a second DNA test (31 July 2024) confirmed the initial finding that DNA evidence did not support a close [NAME] relationship between [NAME] and [NAME]. [22] On 16 December 2024, [NAME] wrote to the then representative stating that as neither DNA test confirmed a [NAME] relationship between [NAME] and [NAME], [NAME] did not have an eligible supporting [NAME] for the

5 application. It also noted that [NAME] had not been declared in [NAME]’s own immigration applications which would further render him ineligible under instructions. Although it accepted [NAME] explanation that he was not aware of [NAME] when he made his own applications, [NAME] found it more likely that he had not been declared because [COUNSEL] was not his son. [23] The representative responded in April 2025 noting that the DNA test results were surprising and upsetting for [NAME] and [NAME], and they did not accept them. They continued to regard their relationship as that of a father and son. The representative reiterated that [NAME] only found out about [NAME]’s existence after arriving in New Zealand. Furthermore, in reference to instructions, the non-declaration was not undertaken with an intent to mislead and if [NAME] had been declared, the outcome of [NAME]’s application would not have been different (F5.1.d). [24] The representative advised that the DRC Children’s Court had now issued an adoption order (25 November 2024) recognising [NAME] as the [NAME] father of [NAME]. [NAME] had never known another father, and it was in his best interests to be reunited with his father now. [25] A legal opinion (19 February 2025) from a [NAME] was provided confirming that a simple adoption had taken place of [NAME] by [NAME] (as opposed to an international adoption which was not lawfully possible under [NAME] law at the time). Under DRC law, a simple adoption was lawful as they were both [NAME] nationals, there were legitimate reasons for the adoption, and the order was in the best interests of [NAME]. The opinion also recorded that a simple adoption allows the [NAME] to maintain ties with their [NAME]. As such, [NAME] was entitled to maintain family ties to his [NAME], his [NAME] being [NAME]. [26] On 15 May 2025, [NAME] wrote to the representative stating that [NAME]’s adoption did not appear to have the same effect as a New Zealand adoption; [NAME] did not appear to have the ability (as a [NAME]) to adopt him in the DRC; and there was no New Zealand adoption order. It noted that the [NAME] [NAME] had not given his consent to the adoption, there was insufficient information as to how [NAME] had superior rights to the [NAME], and under [NAME] law, [NAME] retained ties with his [NAME] which was contrary to the New Zealand understanding of an adoption. [27] [NAME] also stated that it did not accept that [NAME] had been customarily [NAME] (an alternative way an adoption could be accepted under instructions). This was because [NAME] had been living in New Zealand since

6 2015 and had been unable to care for [NAME] since then. Further, the DNA evidence did not establish that [NAME] and [COUNSEL] were extended family members. [28] The representative responded reiterating the difference between the two types of adoption possible in the DRC: simple and intercountry. He noted the lawful nature of the simple adoption as confirmed by the legal opinion, and that [NAME] had provided care and support to [COUNSEL] despite not living in the same country. The representative also stated that an intercountry adoption was not relevant as both [NAME] and [NAME] were [NAME] nationals. [NAME] [29] On 10 July 2024, [NAME]’s verification team accepted the validity of [NAME]’s adoption order documents finding they were of a high quality and followed the law correctly. [30] By letter dated 16 December 2024, [NAME] wrote with concerns that [NAME] had not been [NAME] by [NAME] prior to his application for residence, and that her overseas adoption did not have the same effect as a New Zealand adoption order. It also noted that intercountry adoptions had not been legally possible in the DRC since 2018, and there was no evidence that the [NAME] had consented. [31] Additionally, [NAME] did not accept that [NAME] had been customarily [NAME]. This was because [NAME] had been living in New Zealand since 2015 and had been unable to physically care for her since then. Furthermore, the DNA evidence did not establish that [NAME] and [NAME] were biologically linked. [32] The representative responded, noting the difference between simple and intercountry adoptions in the DRC. The former was still lawful, the latter had been suspended by the government. A letter (18 February 2025) was included from the [NAME]’s lawyer confirming that she had provided consent to the adoption because she did not have the means nor ability to raise her. [NAME] wrote (20 May 2025) that [NAME] and her [NAME] had not had contact for at least 10 years. He had been financially providing for [NAME] since 2014 when he had culturally [NAME] her when they were all living together in South Africa.

7 [NAME]’s Decision [33] On 9 June 2025 ([NAME]) and 10 June 2025 ([NAME]), [NAME] declined the [NAME]’ applications for residence. It did not consider that their adoption orders had the same effect as New Zealand adoption orders under the Adoption Act 1955 (F5.1.b.iii and F5.10.20) because the orders did not sever the [NAME]’ ties with their [NAME]. [34] Further, [NAME] did not consider that the [NAME] had been customarily [NAME] because there was no established [NAME] connection between them and [NAME], and there was no evidence that they were previously in his care. STATUTORY GROUNDS [35] 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. [36] The residence instructions referred to in section 187(4) are the Government residence instructions contained in [NAME]’s Operational Manual; see www.immigration.govt.nz. THE [NAME]’ CASE [37] On 18 July 2025, these appeals were lodged on behalf of the [NAME] on the ground that their circumstances are special such that an exception to the residence instructions should be considered. In short, their newly appointed counsel argues that both children have been lawfully [NAME] and their situation in the DRC is precarious and dangerous. Their [NAME] father, [NAME], is a [NAME] who should be entitled to reunification with his children. The familial separation is detrimentally affecting the children’s health which will likely

8 escalate with continued separation.

For these reasons, their circumstances are special. [38] In support of the appeals, counsel provides the following documents: (a) Timeline of events (19 August 2025) written by [NAME] wife. (b) Statements by [NAME] and his wife (22 August 2025) seeking reunification of the family. (c) Confirmation of [NAME] and his wife’s income. (d) Undated statement from [NAME] and translation confirming that she wishes to come to New Zealand to be reunited with her parents ([NAME] and his wife). (e) A statement by [NAME] (13 August 2025) and translation stating that he wishes to be reunited with his parents ([NAME] and his wife) and to be “physically close to them for the affection”. (f) Undated statements by [NAME] sister and husband who are caring for the children, confirming that [NAME] and his wife are financially supporting the children, and that the children both miss their parents. (g) Support letters (4, 13, and 14 August 2025) from friends and church members of [NAME] and his wife in New Zealand, confirming how difficult the prolonged separation from their children has been for them. (h) Psychological assessment and addendum (18 August 2025) of [NAME] [NAME], clinical psychologist and psychotherapist in DRC regarding [NAME], confirming that the family separation is detrimentally affecting both children’s mental health. (i) Medical certificates (14 August 2025) from the DRC confirming that [NAME] are both in good physical health. (j) Photographs of the [NAME] with [NAME] and his wife during their 2025 visit to the DRC.

9 The Tribunal’s ability to consider the further information provided on appeal [39] The Tribunal cannot consider further information provided by an appellant that was not before [NAME] at the time that it made its decision to decline the application (section 189(1) of the Act). [40] There is an exception to section 189(1) (at section 189(3)(a)). However, the Tribunal finds that this exception does not apply because the further information provided for the [NAME] did not exist at the time [NAME] made its decision (section 189(3)(a)(i)). The statements from the [NAME] and [NAME] and his wife are in the nature of submissions and are considered in that context, but the additional evidence, for the above reasons, is not considered by the Tribunal in its assessment of the correctness of [NAME]’s decision. ASSESSMENT [41] The Tribunal has considered the submissions provided on appeal and the files provided by [NAME] in relation to the [NAME]’ residence applications, and [NAME]’s relevant electronic records. [42] Although the [NAME] appeal only on the ground of having special circumstances, the Tribunal’s jurisdiction requires that it first assess whether [NAME]’s decisions to decline the applications were correct in terms of the applicable residence instructions. This is set out below. Given the finding of the Tribunal, it is not required to assess whether the [NAME] have special circumstances. Whether the Decision to Decline Each Application is Correct [43] The applications were made on 28 January 2020 ([NAME]) and 19 March 2020 ([NAME]), and the relevant criteria are those in residence instructions as at that time. [NAME]’ applications for residence were lodged under the Family (Dependent Child) category.

10 Relevant instructions and legislation [44] Instruction F5.1.b details the eligibility of applicants under the Family (Dependent Child) category where they were [NAME] after their sponsoring [NAME] has made their own application for a [NAME] visa: F5.1 How do dependent children qualify for a [NAME] visa? (29/05/2017) … b. Where the [NAME](s) has previously applied for a residence class visa, principal applicants under Dependent Child Category must also: … iii. have been [NAME] by (see R3) their [NAME](s) after their [NAME](s) made their own application for a residence class visa, by a New Zealand adoption order made under the Adoption Act 1955, or an overseas adoption order which, under section 17 of the Adoption Act 1955, has the same effect as a New Zealand adoption order. … Effective 29/05/2017 [45] Instruction R3.1 (effective 29 November 2010) defines adoption as either a legal adoption; or an adoption by custom which has occurred at an early age within an extended family. The case advanced for the [NAME] has been that they had both been legally [NAME] through the Children’s Court in the DRC by [NAME] after he had been granted his own [NAME] visa in January 2017. To demonstrate that their legal adoptions satisfied instruction F5.1.b.iii, [NAME] was therefore required to establish that the overseas adoption orders had the same effect as a New Zealand adoption order under section 17 of the Adoption Act 1955. [46] Instructions R3.5.1.a and .e set out what constitutes satisfactory evidence of a legal adoption: R3.5.1 Evidence of adoption a. Evidence of a legal adoption is original or certified copies of adoption papers. … e. Under the Dependent Child Category (see F5), if [NAME] has been legally [NAME] by [NAME] who is a [NAME] or residence class visa holder evidence that an overseas adoption has the same effect as a New Zealand adoption under section 17 of the Adoption Act 1955 must also be provided (see F5.10.25). Effective 29/11/2010

11 [47] Instruction F5.10.25 records the evidence required to establish that an overseas adoption has the same effect as a New Zealand adoption: F5.10.25 Evidence that overseas adoption has the same effect as a New Zealand adoption (see F5.1(b)(iii)) Evidence that an overseas adoption has the same effect as a New Zealand adoption under section 17 of the Adoption Act 1955, includes: a. a ruling from a New Zealand court; or b. the assessment of the immigration officer, if there are clear precedents for adoptions from the country concerned. Effective 07/05/2018 [48] [NAME] noted that there was no ruling from a New Zealand court and there were no precedents for adoptions from the DRC. [49] Section 17 of the Adoption Act 1955, as it was when the residence applications were made, states as follows: 17 Effect of overseas adoption (1) Where [NAME] has been [NAME] (whether before or after the commencement of this section) in any place outside New Zealand according to the law of that place, and the adoption is one to which this section applies, then, for the purposes of this Act and all other New Zealand enactments and laws, the adoption shall have the same effect as an adoption order validly made under this Act, and shall have no other effect. (2) Subsection (1) of this section shall apply to an adoption in any place outside New Zealand, if— (a) the adoption is legally valid according to the law of that place; and (b) in consequence of the adoption, the [NAME] or any [NAME] had, or would (if the [NAME] had been a young child) have had, immediately following the adoption, according to the law of that place, a right superior to that of any natural [NAME] of the [NAME] in respect of the role of providing day-to-day care for the person; and (c) either— (i) the adoption order was made by any Court or judicial or public authority whatsoever of a Commonwealth country, or of the United States of America, or of any State or territory of the United States of America, or of any other country which the [NAME], by an Order in Council that is for the time being in force, has directed to be deemed to be referred to in this subparagraph; or (ii) in consequence of the adoption, the [NAME] or any [NAME] had, immediately, following the adoption, according to the law of that place, a right superior to or equal with that of any natural [NAME] in

12 respect of any property of the [NAME] which was capable of passing to the parents or any [NAME] of the person in the event of the person dying intestate without other next of kin and domiciled in the place where the adoption was made and a national of the State which had jurisdiction in respect of that place— but not otherwise. (2A) The production of a document purporting to be the original or a certified copy of an order or record of adoption made by a Court or a judicial or public authority in any place outside New Zealand shall, in the absence of proof to the contrary, be sufficient evidence that the adoption was made and that it is legally valid according to the law of that place. (3) Nothing in this section shall restrict or alter the effect of any other adoption made in any place outside New Zealand. (4) In this section the term New Zealand does not include any territory in which this Act is not in force. (5) This section does not apply to any adoption in another Contracting State that is an adoption— (a) by a [NAME]; and (b) to which the Convention applies; and (c) which takes place in that Contracting State on or after the date on which the Convention has entered into force as between New Zealand and that Contracting State. (6) In subsection (5), Contracting State and Convention have the same meaning as in the Adoption (Intercountry) Act 1997. [50] By way of clarification, the Convention referred to at section 17(6) of the Adoption Act 1955 is the Hague Adoption Convention as defined in section 2 of the Adoption (Intercountry) Act 1997. A “Contracting State” means, subject to Article 45 of the Convention, a country for which the Convention is for the time being in force as between that country and New Zealand. The DRC is not a contracting state to the Convention therefore sections 17(5) and (6) do not apply here. [51] The Tribunal additionally notes that section 17 of the Adoption Act was amended in September 2025 by the Adoption Amendment Act 2025. The effect of the amendment is that, if [NAME] is [NAME] in certain countries, the DRC being one of them, the [NAME] is excluded from being granted a visa or entry permission under the Immigration Act 2009 on the basis of the overseas adoption. [52] However, Schedule 1AA of the Adoption Act 1955 provides that the new restriction will not apply if a visa application was made on or before the day after Royal Assent (18 September 2025). Further, section 33 of the Legislation

13 Act 2019 preserves the position of legal proceedings made prior to a legislative amendment, provided there is no other rule. As the [NAME]’ applications for residence were made well prior to 18 September 2025, their applications are not caught by the legislation amendment. All references to the Adoption Act 1955 in this decision therefore, are to the sections as they were at the time the applications for residence were made. [53] [NAME] declined both applications on the grounds that the [NAME]’ adoption orders did not have the same effect as New Zealand adoption orders under section 17 of the Adoption Act 1955 in circumstances where the orders did not sever their ties to their [NAME] (F5.1.b.iii). For the reasons that follow, the Tribunal finds that [NAME] was not correct. The Tribunal’s previous decision of [NAME]) [54] The first point for consideration is [NAME]’s reliance on the following excerpt from the Tribunal’s (differently constituted) decision in [NAME]) [2016] NZIPT 203012, at [31]: The Tribunal and its predecessor, the [NAME], have previously held that a legal adoption is characterised by the creation of a permanent [NAME]-child relationship which severs the ties between the [NAME] and his or her [NAME]: [NAME]) [2013] NZIPT 200866 and Residence Appeal No 16408 (21 April 2010). In other words, the [NAME] becomes the child of the [NAME] and is no longer the child of the [NAME]. [55] Relying on this decision, [NAME] found that the appellant’s adoption orders did not sever their ties with their [NAME] and therefore could not satisfy section 17 of the Adoption Act 1955, and as such, the instructions. In coming to this finding, it relied on the legal opinion from the lawyer in the DRC stating that the [NAME] retained ties to their [NAME], and Article 678 of the [NAME] which records: The [NAME] retains their ties with their [NAME]. Their [NAME] have ties with both the [NAME] and the [NAME]. [56] Whilst the Tribunal acknowledges that [NAME] properly directed itself to the application of principles derived from prior Tribunal decisions, it finds that the application in this instance fell short of the Tribunal’s intended meaning and was outside of [NAME]’s scope. [57] Specifically, the Tribunal finds that [NAME] misinterpreted the meaning of [NAME]). The relevant excerpt from [NAME]) (which is also

14 reflected in subsequent Tribunal decisions), essentially states that a legal adoption in the context of instructions is characterised by the creation of a [NAME]-child relationship which severs the ties between an [NAME] and their [NAME]. The [NAME] assume the sole and exclusive right to bring up the [NAME] from the [NAME]. This process represents a fundamental shift in the legal nature of the relationship between the child and [NAME], such that the child becomes the child, at law, of their [NAME], and the [NAME] become, at law, their parents. [58] This understanding of the severing of legal ties does not alter the reality that the [NAME] connections or “ties” will always remain. These connections have increasingly been recognised, in New Zealand and across the world, as the [NAME] having rights to know about their [NAME] and whakapapa, and in acknowledgement that they may also retain, and be supported to maintain, emotional connections with members of their [NAME], including their [NAME]. [59] To this end, the Tribunal finds that [NAME] misinterpreted the reference in [NAME]) to “ties” as meaning all ties, not just legal ties. Stated simply, there are at least three sets of “ties” that the Tribunal considers [NAME] can have to their [NAME] family: (a) [NAME] ties. [NAME]’s DNA connection to their forebears. This is not a connection that can ever be severed in any sense. (b) Emotional ties. This is an entirely personal connection that [NAME] has to their family members. They choose the level of their connection, and any severance thereof can only come from them. (c) Legal ties. These are the rights over and responsibility for a child that their [NAME] or guardian holds. By virtue of their legal standing to a child, they have certain legal responsibilities for that child such as to provide them with the necessities of life. They also have legal rights over that child such as to determine their place of residence, schooling and medical treatment (guardianship responsibilities). Legal rights can be severed, but only by the law itself. [60] The Tribunal considers that [NAME]) was addressing the severance that adoption law creates when the legal (primarily guardianship) ties between the child and their [NAME](s) are surrendered to the [NAME](s). This can

15 allow for the retention of other ties, being [NAME] realities and knowledge, without diminishing the “legality” of the adoption. [61] This view of what [NAME]) was intending is also supported by the facts of that appeal which involved an adoption “on the paper” only which had very little practical implication and referenced two earlier decisions involving the formalisation of Kiribati customary adoptions; see [NAME]) [2013] NZIPT 200866 at [24] and [31]–[32]; and Residence Appeal No 16408 (21 April 2010). All of these adoptions were effectively customary adoptions and did not involve the clear severance of legal ties. In contrast, the appellant’s circumstances involved court-issued adoption orders which are significantly more comprehensive in effect than customary adoptions. Importantly in the [NAME]’ situation, they were not intended to remain, were not legally permitted to remain, and did not remain, a part of their [NAME] family units. The legal severance therefore did in fact occur. [62] The Tribunal finds that [NAME]’s misinterpretation of the Tribunal’s findings in [NAME]) meant that it failed to properly engage with whether the [NAME]’ circumstances, when considered holistically, indicated that their legal relationship with their [NAME] had been severed. This meant that it also failed to address the central question of whether the DRC adoption orders had the same effect as New Zealand adoption orders in accordance with instructions and section 17 of the Adoption Act 1955. [63] It is to that issue to which the Tribunal now turns. A legal adoption [64] Instruction R3.5.1.a requires evidence to demonstrate that a legal adoption has been made overseas in the form of “original or certified copies of adoption papers”. Logically, such “adoption papers” must establish that they confer a “legal adoption” in accordance with the relevant overseas jurisdiction in which the adoption order was made. [65] [NAME] accepted that [NAME]’s adoption order was legally valid in the jurisdiction in which it was issued (the DRC) through its own verification process. Her order was issued in a similar process to [NAME]’s. [NAME]’s notes do not indicate it had a concern with the legality of his order in accordance with the DRC law either (other than the issue of paternal consent discussed below at [86]).

16 [66] The relevant laws underpinning the [NAME]’ adoptions were the [NAME] of 1987 (the [NAME]) Book 3, Part 3, Articles 650 to 691 and the DRC Child Protection Code of 2009. The presiding judges for both adoptions noted that the orders were in the [NAME]’ best interests and accorded with the [NAME]. The legality of the orders was also confirmed by the legal opinion of the [NAME]. [67] [NAME] came to the correct conclusion that the adoption orders were legally valid according to the laws of the DRC, the Tribunal notes that it did not appear to consider section 17(2A) of the Adoption Act 1955, which reinforces the legal validity of the adoptions and, in fact, allows for no other conclusion. Section 17(2A) states that the production of a court issued adoption order shall, in the absence of proof to the contrary, be sufficient evidence that the adoption was made and that it is legally valid according to the law of that place. There was no evidence to the contrary, therefore the [NAME]’ adoption orders must be deemed adequate evidence that they are legally valid according to the DRC law. [68] Regardless, whilst [NAME] found that the orders were legally valid in the DRC, it did not accept they had the same effect as a New Zealand adoption order under section 17 of the Adoption Act 1955. This was because the [NAME]’ relationship with their [NAME] had not been fully severed; a requirement it derived from the decision of the Tribunal in [NAME]), as discussed above. [69] The Tribunal finds this conclusion incorrect. First, [NAME] did not, as it was required to do, consider the specific effect of the [NAME]’ adoption orders within the broad scheme of the [NAME]. Instead, it incorrectly elevated a single provision of the [NAME]. Second, as explained above, [NAME] mis-interpreted the Tribunal’s finding in [NAME]) and in doing so, failed to focus on whether the DRC adoption orders satisfied the provisions of section 17 of the Adoption Act 1955. The effect of the adoption orders [70] Instruction F5.1.b.iii requires an overseas adoption order to, pursuant to section 17 of the Adoption Act 1955, have the same effect as a New Zealand adoption order. Section 17, in summary and in application to the [NAME]’ circumstances, required evidence to establish that:

17 (a) the adoption orders were made in accordance with the law in the DRC (section 17(2)(a)); and (b) the consequence of the adoptions, according to the DRC law, was that [NAME] then had superior rights to the [NAME] in respect of the role of providing day-to-day care for the [NAME] (section 17(2)(b)); and (c) a further consequence of the adoption, according to the DRC law, was that [NAME] had assumed “a right superior to or equal with” that of the natural parents in respect of any property of the [NAME]’ which could pass to their parents upon their intestacy (section 17(2)(c)(ii)). [71] [NAME] found that the adoptions did not meet section 17(2)(b) or (c)(ii) of the Adoption Act 1955 because, as per Article 678 of the [NAME], the [NAME] retained ties with their [NAME] family. Therefore, their relationships with their [NAME] had not been severed and, as a result, the consequences of the adoptions differed from the consequences of a New Zealand adoption order. The Tribunal finds this conclusion incorrect for the reasons that follow. ― Reliance on a single provision to the exclusion of others [72] First, [NAME] relied solely on one provision of the [NAME] which states that an [NAME] retains ties with their [NAME] family (Article 678). In doing so, it failed to consider that provision in the context of the other relevant articles of the [NAME] which discuss the wider implications of such an adoption. The Tribunal comes to this finding because there is no reference in [NAME]’s files to any other provision of the Code, nor any indication that the immigration officer accessed the [NAME] as a whole. [73] The Tribunal is satisfied that had [NAME] considered the other articles of the [NAME] it would have had a more accurate sense of the effect of the [NAME]’ adoption orders. The Tribunal notes particularly the following articles which refer to simple adoptions (relying on an automated translation of the Code): Article 650: Adoption creates, by operation of law, a [NAME]-child relationship distinct from the [NAME]'s original parentage. …

18 Article 677: The [NAME] is considered in all respects to be the child of the [NAME]. They become part of the [NAME]'s family. … Article 679: In all cases where a choice must be made between the [NAME] and the [NAME], the [NAME] is preferred, unless otherwise provided by law. Article 680: Adoption does not create any civil relationship between the [NAME] and the [NAME]'s [NAME]. … Article 683: Any specific clause modifying the legal effects of adoption is null and void. … Article 688: The [NAME] is vested with parental authority over the [NAME]. … Article 689: An [NAME], their spouse, and their [NAME] may only claim support from the [NAME]'s [NAME] if the [NAME] is unable to provide it. They owe support to the ascendants of the [NAME]'s [NAME] only if the latter cannot obtain it from another member of their family. Article 690: An [NAME] and their [NAME] retain all their inheritance rights in their [NAME]. They acquire inheritance rights in their [NAME]. In the absence of inter vivos or testamentary dispositions, the [NAME]'s estate, to the extent that it does not pass to their [NAME] or spouse, is divided equally between the [NAME] and the [NAME]. [74] The Tribunal finds that, on reading the aforementioned provisions as a whole, while the [NAME] does retain “ties” with their [NAME] (Article 678), these ties are significantly limited upon a full reading of the remaining provisions and are centred on matters that include, as stated expressly, inheritance rights. It is evident that a new parental relationship is created between the [NAME] and [NAME](s) on the making of an adoption order under the [NAME], with responsibility for the care and welfare of the child shifting to the [NAME] who, become, at law, the parents of the child. [75] Specifically, the [NAME] creates, by operation of law, a [NAME]- child relationship distinct from the [NAME]'s original parentage (Article 650); directs that the child is considered in all respects the child of the [NAME] (Article 677); states that where a choice must be made, the [NAME] is preferred (Article 679); requires the vesting of parental authority in the [NAME] [NAME] (Article 680); and states that an [NAME]’s inheritance obligations are divided equally between the [NAME] and [NAME] (Article 690). Read alongside these provisions, the Tribunal is satisfied that Article 678 of the Family

19 Code simply confirms the non-extinguishment of [NAME] connections, while granting all legal rights of parenthood to the [NAME]. [76] As an aside, the Tribunal notes that despite Article 678, neither appellant retained a connection with their [NAME]; they both were cared for by [NAME] sister in his absence and under his direction and maintenance. He had previously cared for [NAME] (2013−2015) and had been attempting to have both [NAME] reunited with him and his wife since 2020. The [NAME]’ adoptions have as such had practical implications for them as they ceased being considered part of their [NAME] families and are, for all intents and purposes, the children of their [NAME] father. [NAME] bears overall responsibility for them and is the one charged with making important guardianship decisions relating to them. ― Consequences of the adoption [77] Second, the Tribunal finds that [NAME] did not specifically consider the requirements of section 17(2) of the Adoption Act 1955 as instruction F5.1.b.iii requires. [78] Section 17(2)(b) states that, in consequence of the adoption, the [NAME] has (according to the law of the jurisdiction within which it was made) a right superior to that of any natural [NAME] in respect of the role of providing day-to-day care for the child. Article 688 of the [NAME] confers this right: The [NAME] is vested with parental authority over the [NAME]. [79] “Parental authority” is not defined in the [NAME], however the consequences of parental authority are detailed in Article 326 (emphasis added): The father and mother, or the person exercising parental authority, are responsible for the care of the minor child. They may only exercise the rights of parental authority in the best interests of the child. The person exercising parental authority is obligated to support the child and provide for their needs and education to the best of their ability. They have the right and the duty to determine the child's residence, to monitor their actions and relationships, to arrange their burial, and to ensure that their memory is respected. They may administer reprimands and corrections to the child to the extent compatible with their age and the improvement of their conduct. [80] Day-to-day care is not defined in the Adoption Act 1955 but is defined to some extent in the New Zealand Care of Children Act 2004, where it is used to denote the daily care of a child (see section 8). The Tribunal is satisfied that the term “parental authority” as used in the [NAME] governing adoptions in the

20 DRC, is analogous to the term “day-to-day care” utilised in section 17 of the Adoption Act 1955. [81] Section 17(2)(c)(ii) states that, in consequence of the adoption, the [NAME] has (according to the law of the jurisdiction within which it was made) a right superior to or equal with that of any natural [NAME] with respect to the [NAME] dying intestate. Article 690 of the [NAME] refers specifically to this situation — the child dying intestate — stating (emphasis added): An [NAME] and their [NAME] retain all their inheritance rights in their [NAME]. They acquire inheritance rights in their [NAME]. In the absence of inter vivos or testamentary dispositions, the [NAME]'s estate, to the extent that it does not pass to their [NAME] or spouse, is divided equally between the [NAME] and the [NAME]. [82] The [NAME] therefore affords the [NAME] a right equal to that of the [NAME] [NAME] if the [NAME] dies intestate. [83] Articles 688 and 690 were not specifically considered by [NAME] in its assessment as to whether the adoption orders satisfied section 17(2)(b) or (c)(ii) of the Adoption Act 1955. It is not clear to the Tribunal if it was even aware of these provisions. [NAME] appears therefore to have lost sight of the need to conduct an assessment under section 17 due to its misinterpretation of [NAME]). Or, from another perspective, it elevated Article 678 above all other provisions, and in doing so negated the other articles which directly addressed the requirements of section 17. [84] The Tribunal finds that [NAME] was incorrect to focus its assessment on the retention of any ties an [NAME] would retain to their [NAME], but should have specifically considered, in accordance with the two specific requirements under section 17: the impact of the adoption order with respect to the role of providing day-to-day care (section 17(2)(b)); and intestacy laws (section 17(2)(c)(ii)). The fact that [NAME] could retain “family ties” with their [NAME], did not invalidate their adoptions when considered in relation to the other provisions of the [NAME], which demonstrated that the adoptions satisfied both section 17(2)(a), (b) and (c) of the Adoption Act 1955. [85] For these reasons, the Tribunal finds that the evidence provided to [NAME] demonstrated that the adoption orders issued by the DRC Children’s Court had the same effect as a New Zealand adoption order in terms of section 17 of the Adoption Act 1955. As a result, [NAME]’s adoptions of the [NAME] can be properly considered as legal adoptions that satisfy instructions.

21 Additional observation regarding the father’s consent [86] As discussed, the Tribunal has found [NAME] was incorrect to conclude that the appellant’s adoption orders were not legal adoptions with the same effect as New Zealand adoptions. However, for completeness, [NAME]’s concerns regarding paternal consent additionally warrant discussion. [87] As previously stated, [NAME] and [NAME] and [NAME] [NAME] had all understood that [NAME] was [NAME] [NAME]. When it was established through DNA testing that he was not, it was recorded that [NAME] [NAME] was [NAME]. [NAME] noted in its letter of decline that there was insufficient information provided regarding whether the [NAME]’s rights had been considered in the making of the adoption order which (implicitly) additionally detracted from its legality. [88] The Tribunal finds that this issue was addressed by the DRC Children’s Court in the making of the adoption orders, where it was noted that, if consent by a [NAME] had not been able to be obtained, Article 662 applied: Article 662 … When a minor's parentage is established with respect to only one [NAME], that [NAME] alone consents to the adoption. [89] Article 662 of the [NAME] addresses the situation where parentage is established with respect to only one [NAME] (that is, a [NAME] is [NAME] or has no known address); then consent is only needed from that one [NAME]. This Article was explicitly considered and referenced by the Judge in the making of [NAME]’s adoption order, and as such, the Tribunal is satisfied that [NAME]’s [NAME] paternity is no impediment to the legality of the order. His parentage was established with respect to only one [NAME] — his [NAME] — and she was legally empowered to consent to the adoption. [90] This position accords with that of New Zealand where there is no automatic vesting of guardianship to a child’s father in similar situations; see section 17 of the Care of Children Act 2004. [91] Accordingly, in New Zealand, and ostensibly in the DRC, absent a legal (or agreed) verification of paternity, a [NAME] has no automatic guardianship rights, and therefore there is no requirement for them to consent to an adoption

22 order.

For these reasons, in [NAME]’s case, the lack of consent from an [NAME] and [NAME] does not invalidate an adoption order and it was not a concern which [NAME] needed to raise. [92] In summary, while [NAME] had concerns about whether the [NAME]’s rights had been considered, which it found could raise issues with the legality of the adoption, Article 662 of the [NAME] made it clear that, as an [NAME], his consent was not required. This was expressly addressed by the DRC Children’s Court. Having regard to this, and the presumption at section 17(2A), it is clear that the adoption orders were legally valid under DRC law. Conclusion on correctness [93] The Tribunal acknowledges the difficulty for immigration officers assessing overseas adoptions, which is primarily a legal interpretation exercise (see HF (Dependent Child) [2019] NZIPT 205310 at [69]). However, it finds that [NAME]’s decisions to decline the [NAME]’ applications for residence were not correct. The adoptions constituted legal adoptions (R3.1.a) and clearly satisfied section 17 of the Adoption Act 1955, meaning that they had the same effect as New Zealand adoption orders (F5.1.b.iii). [94] [NAME] failed to correctly assess the [NAME]’ adoption orders with respect to the [NAME], elevating one provision above the wider scheme of the Code. It also failed to direct its assessment towards whether the Code and resulting adoption orders met the two specific requirements set out at section 17 of the Adoption Act 1955 (F5.1.b.iii). It did so by misapplying the Tribunal’s findings in [NAME]) as the test for a legal adoption rather than, as required, applying instructions and statute. [95] For these reasons, the Tribunal finds that [NAME]’s decisions to decline the applications pursuant to instructions R3.1 and F5.1.b were incorrect. The Tribunal finds that the DRC Children’s Court adoption orders had the same effect as NZ adoption orders to the extent required to satisfy instructions in demonstration that the two [NAME] had been legally [NAME]. Determination options for the Tribunal [96] Having found that [NAME] was incorrect, and that the [NAME]’ DRC adoptions are considered legal adoptions under instructions with

23 the same effect as New Zealand adoption orders, the Tribunal must consider how to determine the appeal. Under section 188(1)(e), it can cancel the decision and refer it back to [NAME] for a correct assessment because it is not satisfied that the [NAME] would otherwise have been entitled to residence; or, under section 188(1)(b), it can reverse the decision as having been incorrect (in which case, as per section 190, the [NAME] must grant a [NAME] visa). [97] The Tribunal is satisfied that it is in a position to reverse the decision and direct the grant of [NAME] visas to the [NAME] because, for the following reasons, it finds that the [NAME] satisfy instructions. [98] As above, the Tribunal has found that both [NAME] were legally [NAME] by [NAME] and their adoptions have the same effect as New Zealand adoption orders in accordance with section 17(2)(a), (b) and (c)(ii) of the Adoption Act 1955. The [NAME]’ applications for residence therefore meet instruction F5.1.b.iii. [99] As to the remainder of the requirements under the Family (Dependent Child) category, [NAME] was satisfied as to the [NAME]’ identities, that they had never entered New Zealand, that they met instruction F5.1.a as to age, being single and dependent, and that [NAME] is lawfully and permanently in New Zealand and not liable for deportation (F5.1.5). [100] With respect to the health and character requirements (F5.1.f and A4 and A5), the [NAME] have provided a medical certificate on appeal (14 August 2025) confirming that they both remain in good health. They had previously been assessed by [NAME] as of an acceptable standard of health (9 October 2024). [NAME] had not noted any character concerns as they were both aged under 17 years during the processing of their applications. [NAME] has only recently (March 2026) reached the age of 17 years. [101] Finally, with regard to the statutory and regulatory intent, the Tribunal notes that the restrictions on the recognition of overseas adoptions serve to combat the unlawful practices of child trafficking and misuse of the immigration system. Such concerns are not engaged here. [NAME] has been acting as the [NAME], and his wife their mother, for many years, albeit from a distance. The evidence demonstrates that they have had regular contact while separated and have been pursuing reunification for over six years. No other person has guardianship responsibility for the [NAME]. [NAME], his wife and the [NAME] are dedicated to living together in New Zealand as a family unit. Crucially, the

24 Certified to be the Research Copy released for publication.

[NAME] Member teenage [NAME] have clearly expressed their views to the Tribunal that they would like to come to New Zealand to live with the people they consider their parents, and their inability to do so is having a detrimental impact on their mental health. [102] In all the circumstances, including and importantly that this family requires certainty following their prolonged immigration process, the Tribunal considers that it is in a position to make a determination in favour of a grant of [NAME] status. DETERMINATION [103] This appeal is determined pursuant to section 188(1)(b) of the Immigration Act 2009. The decision of [NAME] is reversed as being incorrect in terms of the applicable residence instructions. [104] Pursuant to section 190 of the Act, an immigration officer must grant residence class visas (and, if necessary, grant entry permission) to the [NAME]. The grant of those visas is subject to the [NAME] and their family members complying with all outstanding immigration requirements in accordance with section 190 of the Act. [105] The appeals are successful. Order as to Depersonalised Research Copy [106] 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 [NAME]’ names and any particulars likely to lead to the identification of the [NAME] or their family members. “[NAME]” [NAME] Member