Tribunal confirms decline of residence application but recommends exception for special circumstances

OUTCOME: Allowed in Part

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207485 [NAME], [NAME]

Appellant: [redacted]

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

Before: [NAME] (Member)

Representative for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 25 May 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is an 11-year-old citizen of [NAME] whose application for residence under the Family ([NAME] [APPELLANT]) category was declined by Immigration New Zealand. [2] The appellant’s mother, a New Zealand citizen, is acting as the appellant’s responsible adult for this appeal, in accordance with section 375 of the Immigration Act 2009 (the Act). THE ISSUE [3] Immigration New Zealand declined the appellant’s residence application because she was not declared (or included) in her mother’s registration under the [NAME]; or in her mother’s subsequent application for a resident visa under [NAME]) category. Immigration New Zealand was not satisfied that the non-declaration occurred with no intent to mislead or that the appellant’s inclusion would not have resulted in a different outcome. For the reasons that follow, the Tribunal finds that Immigration New Zealand’s decision was correct.

2 [4] The principal issue for the Tribunal is whether the appellant has special circumstances arising from her unsustainable care arrangements in [NAME], her parents’ migration to New Zealand, and the lack of an alternative pathway to be reunited with her mother, who has sole custody of her. [5] For the reasons that follow, the Tribunal finds that the appellant has special circumstances such as to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

BACKGROUND [6] The appellant was born in 2014 in [NAME]. When she was approximately two years old, her parents’ relationship ended. They each retained joint custody over the appellant, although she remained in her mother’s day-to-day care. [7] In April 2019, the appellant’s mother registered in the [NAME] and did not declare or include the appellant. [8] The mother’s registration was selected in May 2019, and she subsequently lodged her residence application under the [NAME]) category in October 2019. She did not declare or include the appellant. The mother was granted a resident visa in November 20219 and travelled to New Zealand in December 2019. The appellant was left in the care of her maternal [NAME]. [9] The mother was granted New Zealand citizenship in 2020. [10] In 2022, the appellant’s father, his [NAME] and their children were granted residence under the [NAME]) category of residence and they travelled to New Zealand. The father’s [NAME] had earlier registered for [NAME]. Neither her registration or her subsequent residence application which included the father, declared or included the appellant. [11] The appellant made unsuccessful visitor visa applications in June, October and December 2023. [12] The mother returned to [NAME] in July 2023 for a short visit.

3 [13] In December 2024, the Family Court of [NAME] granted the mother’s application for full custody of the appellant. The appellant’s father supported the application. Residence Application [14] On 27 March 2025, the appellant made an application under the Family ([NAME] [APPELLANT]) category of residence instructions. With it, the mother included a statutory declaration setting out that she had not included the appellant in her registration in the [NAME] or her subsequent residence application, as the appellant’s father objected to her being taken to New Zealand. However, she now had full custody of the appellant. [15] On 20 May 2025, Immigration New Zealand advised the mother that she had not declared or included the appellant when she was eligible to be included in her ballot registration. It appeared that the appellant’s application was caught by [NAME], which now barred the appellant from making a successful residence application under the Family ([NAME] [APPELLANT]) category as she had not been declared or included when she was eligible. [16] Immigration New Zealand also stated, with reference to instruction F5.1.c, that, unless F5.1.d applied, applications under the Family ([NAME] [APPELLANT]) category would be declined if the [NAME]) of the principal applicant had previously applied for residence; the applicant was born to their [NAME]) before their [NAME])’s application was decided; and the applicant was not declared as a [NAME] [APPELLANT] on the [NAME])’s application. An application may be approved pursuant to F5.1.d, if all other requirements were met and an immigration officer was satisfied that the [NAME]) non-declaration occurred with no intent to mislead, and the outcome of the [NAME])’s application would not have been different had the [APPELLANT] been declared. [17] Immigration New Zealand stated that the appellant had not been declared in her mother’s resident visa application. This was despite the fact the mother had declared but not included her parents, brothers and sisters in her application. Immigration New Zealand had considered the mother’s statutory declaration (27 March 2025) where she explained her reasons for not declaring or including the appellant but was not satisfied that the non-declaration occurred with no intent to mislead Immigration New Zealand.

4 [18] In a response dated 17 June 2025, counsel submitted that both the mother’s and the appellant’s mental health were suffering because of the separation, the mother now had sole custody of the appellant and the appellant’s [NAME]’ health issues were impairing their ability to provide support for the appellant. Evidence provided in support of these submissions included letters from the mother (4 June 2025), the father (4 June 2025), the [NAME] (27 May 2025), the appellant’s 20-year-old cousin who lives with the mother (5 June 2025) and the appellant’s schoolteacher (12 June 2025). Evidence as to the mother’s and cousin’s employment, the order of custody from the Family Court of [NAME] and letters from the mother’s general practitioner (5 June 2025) and registered psychologist (10 June 2025), as well as from the [NAME]’ general practitioner (9 June 2025) were also provided. Immigration New Zealand’s Decision [19] On 24 June 2025, Immigration New Zealand declined the appellant’s application on two grounds. First, the appellant had not been declared or included in her mother’s registration (instruction [NAME]) when she was eligible to be included. Second, although eligible, the appellant had not been declared in the mother’s Special Policies ([NAME] Scheme) category residence application, as required by instruction F5.1.c. [20] Because Immigration New Zealand was not satisfied that the non-declarations had occurred without intent to mislead or that the outcome of the mother’s residence application would have been different had the appellant been declared, the exception at F5.1.d did not apply, and the application was declined. 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.

5 [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 31 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. [24] Counsel makes the submission that the appellant’s circumstances are special as a result of her being separated from her mother, her father realising he should not have prevented the mother from bringing the appellant to New Zealand, the best interests of the appellant (which are for her to be with her mother in New Zealand), and the fact that the appellant is not responsible for her exclusion from her mother’s residence application. Further, while she meets all the requirements for residence, she has no available pathway due to her mother’s non-declaration. [25] In support of her appeal, the appellant provides the documents previously provided to Immigration New Zealand, as well as a letter (12 June 2025) from a [NAME] supporting the appellant’s [NAME] which records the difficulty the [NAME] face in continuing to care for the appellant; and the mother’s Inland Revenue summary of earnings up to 2 September 2025. [26] The Tribunal will consider the further information provided on appeal is necessary for its determination of whether the appellant has special circumstances, in accordance with section 189(3)(b). 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, her mother’s and father’s residence applications, and Immigration New Zealand’s relevant electronic records. [28] Although the appellant appeals only on the ground of having special circumstances, the Tribunal’s jurisdiction requires that it first assess whether

6 Immigration New Zealand’s decision to decline the application was correct in terms of the applicable residence instructions. This is set out below and is followed by an assessment of whether the appellant has special circumstances which warrant consideration of an exception by the Minister of Immigration. Whether the Decision is Correct [29] The application was made on 27 March 2025 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because the appellant was not declared in the mother’s successful residence application, and it was not satisfied that the non-declaration had occurred without intent to mislead. [30] Immigration New Zealand’s declined the appellant’s application because [NAME] of the Family ([NAME] [APPELLANT]) category applied. It states: F5.35 Application under [NAME] [APPELLANT] of person eligible for inclusion in an earlier registration or expression of interest A resident visa will not be granted under the [NAME] [APPELLANT] category if the principal applicant was eligible for inclusion but not actually included in: a. a successful registration under either the [NAME], Refugee Family Support Category, [NAME] or Pacific Access Category; or … Effective 15/12/2017 [31] Instruction S1.101.15 set out the requirements for registration under the [NAME]: S1.10.15 Inclusion in registration of immediate family members of the principal registrant (01/06/2018) a. Where the principal registrant has a partner and/or [NAME] children all of those people must be included in the registration. b. If a registration is successful in the pool draw, only a partner and/or [NAME] children included in the registration may be included in the resulting application for a resident visa under the [NAME]. This limitation applies despite R2.1 concerning the inclusion of family members in an application. c. Any partner and/or [NAME] children who were eligible for inclusion in the registration but were not included must not subsequently be granted a residence class visa under the [NAME] [APPELLANT] [NAME]. d. Despite (b) and (c) above, a partner or [NAME] [APPELLANT] who was included in the registration but not in the resulting application for a resident visa may be granted a residence class visa as a principal applicant under the [NAME] [APPELLANT] [NAME].

7 e. Notwithstanding (b) above, in the event an applicant includes any partner and/or [NAME] [APPELLANT] in their application who was not included in their registration, officers should allow the principal applicant an opportunity to explain the non-declaration in accordance with R5.15 before applying the limitation referred to in (b). f. Where a person is not eligible to be included at the time of registration but is eligible at the time of the application for a resident visa (e.g. in the case of a newborn [APPELLANT]), they may be included in the resident visa application provided R2.1 is met. Effective 01/06/2018 [32] The appellant’s mother made a successful registration under the [NAME] and did not include the appellant. As a [NAME] [APPELLANT], the appellant was eligible and required to be included in her mother’s registration, as set out under S1.10.15.a. [33] It is not disputed on appeal that the appellant was a [NAME] [APPELLANT] who was eligible for inclusion in her mother’s registration. [34] Therefore, the Tribunal finds that the appellant was caught by [NAME]. She was not eligible to be granted a resident visa and Immigration New Zealand had no discretion to make an exception to instructions. [35] The appellant’s residence application was also declined because she was not declared in her mother’s subsequent residence application. The relevant instructions states: F5.1 How do [NAME] children qualify for a resident visa? … c. Unless an immigration officer is satisfied that the provisions at (d) below are met, applications for residence under [NAME] [APPELLANT] will be declined if: i. the [NAME]) of the principal applicant has previously applied for a residence class visa; and ii. the principal applicant was born to, or adopted by, their [NAME]) before their [NAME]) application was decided; and iii. the principal applicant was not declared as a [NAME] [APPELLANT] on the [NAME]) application for a residence class visa. d. An application may be approved, however, if all other requirements are met and an immigration officer is satisfied that the [NAME]) non-declaration of the [APPELLANT] occurred with: i. no intent to mislead on the part of either [NAME]; and ii. the outcome of the [NAME]’s residence class visa application would not have been different had the [NAME] [APPELLANT] been declared.

8 Note: Immigration officers should not decline an application on the basis of provision (c) above without first providing the principal applicant an opportunity to explain the non-declaration in accordance with R5.15 Explaining discrepancies in family details. … Effective 01/10/2024 [36] It is not disputed that the mother also failed to declare the appellant, in her subsequent residence application. In order for the appellant to be granted residence, she needed to fall within the exception set out at F5.1.d. However, Immigration New Zealand was not satisfied that either element had been met. [37] In her statutory declaration (27 March 2025), the mother explained that she did not declare the appellant because the father would not allow her to remove the appellant from [NAME]. However, the residence application form permitted the mother to declare the appellant without including her in the application. The Tribunal is satisfied that this was sufficient for Immigration New Zealand to make the finding that F5.1.d.i was not met. [38] Immigration New Zealand also stated that it was not satisfied that, had the appellant been declared, the outcome of the mother’s residence application would not have been different. This was based on the mother’s declaration that the father held joint custody of the appellant which would have prevented the mother from demonstrating she had the right to remove the appellant from [NAME]. [39] The Tribunal finds that Immigration New Zealand appears to have conflated declaration and inclusion in the residence application. Had the mother declared, but not included the appellant in her residence application (and in her previous [NAME] registration), the appellant could have later applied for residence under the Family ([NAME] [APPELLANT]) category (as per S1.10.15.d). Therefore, the Tribunal does not see how declaring of the appellant would have had resulted in a different outcome. [40] The Tribunal is not satisfied that Immigration New Zealand had sufficient evidence to be satisfied that the outcome of the mother’s residence application would not have been different had the appellant been declared. However, the exception at F5.1.d required both elements to be met. Because Immigration New Zealand was correct to find that it was not satisfied that the mother’s non-declaration was done with no intent to mislead, meaning the first element was not satisfied and the application had to be declined in accordance with F5.1.c.

9 Conclusion on correctness [41] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application for residence was correct because the appellant was eligible for inclusion, but was not included, in her mother’s successful registration under the [NAME]. Nor did the mother declare the appellant in her own successful residence application. As a result, the appellant was not eligible to apply as a [NAME] [APPELLANT] in a future application, under F5.1.c, unless the exception at F5.1.d applied. Immigration New Zealand was correct to find that the exception did not apply. Whether there are Special Circumstances [42] Where the Tribunal found the decision of Immigration New Zealand to be correct, it has the power to consider whether the circumstances of the appellant are special, such that they warrant consideration by the Minister of Immigration of an exception to the residence instructions. [43] Whether an appellant has special circumstances will depend on the particular facts of each case. The Tribunal balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special. [44] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. Personal and family circumstances [45] The appellant was born in [NAME] in 2014 and is now 11 years old. Her mother and father were in a short three-year relationship which lasted until the appellant was about two years old. The mother has described the relationship as “unhealthy and unstable” and the father stated that they were not on “good terms” following their breakup. While the mother maintained the day-to-day care of the appellant, the father retained the right to joint custody. Both of her biological parents are now living permanently in New Zealand. [46] In 2024, the Family Court in [NAME] granted the mother’s application for full custody of the appellant, with the father’s consent to the application. She now has the right to remove the appellant from [NAME] and the sole right to determine the

10 appellant’s place of residence. It was following this grant of custody that the mother supported the appellant’s residence application which is the subject of this appeal. The appellant’s care arrangements in [NAME]. [47] Since the mother’s departure from [NAME] in December 2019, the appellant has remained in the care of her maternal [NAME]. The mother has continued to fully financially support the appellant and has provided Immigration New Zealand with evidence of her regular remittances back to [NAME] in 2024 and 2025. The appellant’s father left [NAME] for New Zealand in 2022. The [NAME] (now aged 70 and 75 years old) stated in a letter (27 May 2025) that the continued care of the appellant is increasingly difficult as they age, a sentiment reiterated by the mother in her letter where she notes that they are struggling to provide the level of care the appellant requires. A letter (12 June 2025) from the [COMPANY] records that the group has provided the [NAME] with medical supplies and the [NAME] struggle to support the appellant. Best interests of the appellant [48] The Tribunal has an obligation to have regard to the best interests of any children affected by the outcome of the appeal, under Article 3(1) of the 1989 Convention on the Rights of the [APPELLANT]. [49] The appellant, now an adolescent, has been separated from her mother, since she was five years old who, until that time, was her primary caregiver. In place of her mother, she has been cared for by her maternal [NAME] in [NAME]. Her mother stated in her June 2025 letter that she has been financially supporting her through regular remittances and that she and the appellant are in daily communication through video and telephone calls. [50] However, according to the letters from the family members provided, the appellant’s emotional and mental health have been deteriorating as a result of their continued separation, which has resulted in sadness, loss and low esteem. The father stated in his letter to Immigration New Zealand that he realised he had made a mistake in keeping the appellant in [NAME] when he saw how much she missed her mother. [51] The appellant is in [COMPANY] and her struggle to cope with the loss of her mother has impacted her academic performance. The appellant’s teacher

11 reported in a letter (June 2025) that the appellant is a bright and capable student. However, this potential was not being reflected in her participation and academic performance. The teacher attributed the lack of the appellant’s mother in her life has as a significant impact on her behaviour and confidence. [52] The appellant’s [NAME], as set out above, are now struggling to provide the appellant with the care and support she needs. While the mother recorded that she had brothers and sisters living in [NAME], no evidence is before the Tribunal of any other sources of available support for the appellant. In contrast, the mother recorded that she is able to provide a stable and loving environment in New Zealand to support the appellant. [53] While the appellant has never travelled to New Zealand, the Tribunal finds that it would be in her best interests to be reunited with her mother in New Zealand. Already struggling with being apart from her mother, and with a decreased level of care available from her [NAME], it is possible that her current feelings of unhappiness and low self-esteem may continue to intensify. The evidence before the Tribunal suggests that the appellant needs the mother’s emotional support and presence in a way which is not sufficient in the current care arrangements. [54] A letter (9 June 2025) from the [NAME]’ general practitioner recorded that they suffer from long-term illnesses, identifying the [NAME]’s hypertension alongside other unnamed long-term complications and the [NAME]’s periodic hyperventilation. Their mental and physical capabilities as well as vision and hearing are diminishing, and the general practitioner concluded that they required care and supervision in their daily tasks. They were not able to effectively care for anyone else. The Tribunal accepts that the [NAME]’ ability to continue to care for the appellant is limited and will likely deteriorate further. The mother’s non-declaration, migration to and settlement in New Zealand [55] In 2019, when the mother registered for the ballot, she did not declare the appellant as her [APPELLANT], because the appellant’s father objected to having her removed from [NAME]. [56] In May 2019, the mother’s registration was successful. In October 2019, the mother applied for a resident visa under the [NAME]) category and did not declare the appellant. Both her and the father’s statements record that the father objected to the appellant being removed from

12 [NAME], which was the reason the mother gave for failing to declare the appellant. Immigration New Zealand was not satisfied that the non-declaration was done with no intention to mislead. However as discussed above, the Tribunal is not satisfied that it would have resulted in a different outcome of the mother’s application had she declared, but not included, the appellant. Therefore, the Tribunal sees nothing the mother could have potentially gained by her non-declaration. [57] Since arriving in New Zealand, the mother has purchased her own home and has been employed with the same [COMPANY] as an assistant executive housekeeper for the last six years. Her supervisor provided a support letter (2 June 2025) where it is recorded that the mother is hardworking and good natured. Throughout the term of her employment, the mother has spoken frequently of her daughter, shared pictures with colleagues and made videocalls with her in the breakroom. However as of late, the appellant had become noticeably stressed over the uncertainty around the appellant’s future. [58] The appellant’s 20-year-old cousin lives with the mother and works part time at the same [COMPANY]. She has provided a letter (5 June 2025) stating that she is also committed to supporting the appellant if she were to join the household. The cousin also notes that the continued separation has deeply impacted the mother. [59] Both the mother’s general practitioner and a registered psychologist have recorded that the mother is experiencing depression because of the uncertainty around the daughter’s safety and wellbeing. The psychologist is confident that the mother’s mood and wellbeing would increase if she were reunited with the appellant. [60] The Tribunal accepts that the mother wishes to be reunited with her daughter in New Zealand where she has steady, permanent employment and she owns her own home which would facilitate her ability to care and provide for her only [APPELLANT]. The father’s migration to New Zealand [61] The appellant’s father is also a New Zealand resident. The father’s [NAME] registered for the [NAME] and her ballot was selected in 2018. She lodged her residence application, with the father as a secondary applicant, in February 2019. The application was successful, and the family travelled to New Zealand in 2022. The Tribunal notes that despite the father’s

13 assertion of his parental rights over the appellant, he also did not declare the appellant in his residence application. [62] The father has provided a letter of support (4 June 2025) where he set out that he realised his error in judgement which he stated was a result of his own selfishness. He now deeply regrets the impact that his actions have had both on the appellant and her mother. No pathway to residence [63] However as discussed above, because the appellant was not included in her mother’s [NAME] registration, she is permanently barred from gaining residence under the Family ([NAME] [APPELLANT]) category ([NAME]). Similarly, she was not declared in her mother’s residence applications under the [NAME]) category and is barred under F5.1.c. While her father also failed to declare her in his wife’s registration or subsequent residence application under the same residence category (in which he was included), he no longer has any right to determine her place of residence and therefore any application on the basis of her relationship to her father would not be successful, even if she was able to show that the exception under F5.1.d could be satisfied. In short, the appellant has no pathway to residence. [64] The appellant has also never travelled to New Zealand, as she was unable to successfully demonstrate that she met the criteria for a visitor visa. With both her parents living permanently in New Zealand, she was unable to establish that she was a bona fide visitor. Health and character requirements [65] As a minor [APPELLANT], under the age of 17-years-old, the appellant is deemed to be of good character. She was found to have an acceptable standard of health for residence. Discussion on special circumstances [66] The appellant is an 11-year-old citizen of [NAME] who has remained separated from her mother since 2019, nearly half of her young life. The mother and daughter currently maintain a relationship through remote means, with the mother visiting once in 2023. However, the appellant’s care arrangement is likely to become untenable both for the [NAME] and the appellant in the

14 foreseeable future. The uncertainty around this arrangement is taking a toll on the mother’s mental health. The appellant’s wellbeing, mental health, confidence and academic performance is also suffering as a result of her separation from her mother, who is able to provide a loving and stable home environment which she shares with the appellant’s 20-year-old cousin. The two women are able to provide the emotional support and supervision that would serve the appellant’s best interests. [67] While both her parents have a right to remain in New Zealand, the appellant is without any pathway to residence. She is permanently barred from gaining residence under the Family ([NAME] [APPELLANT]) category through her mother because she was not included in her mother’s [NAME] registration ([NAME]). The Tribunal acknowledges that the appellant bears no responsibility for her non-inclusion in her mother’s registration or her non-declaration in the mother’s application for residence. However, it is in her best interests that she be reunited with her mother in New Zealand. Conclusion on special circumstances [68] Having regard to circumstances of the appellant and her family the Tribunal finds that considered cumulatively, the appellant has special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to residence instructions. DETERMINATION [69] Pursuant to section 188(1)(f) of the Immigration Act 2009, the Tribunal confirms the decision of Immigration New Zealand to be correct in terms of the applicable residence instructions but considers that the special circumstances of the appellant are such as to warrant consideration by the Minister of Immigration as an exception to those instructions. [70] Pursuant to section 190(5) of the Act, the Minister of Immigration: (a) is requested to consider whether a residence class visa should be granted, as an exception to residence instructions, to the appellant; and

15 Certified to be the Research Copy released for publication.

[NAME] Member (b) may, if granting a resident visa, impose conditions on the visa in accordance with section 50 of the Act. [71] Pursuant to section 190(6) of the Act, the Minister of Immigration is not obliged to give reasons in relation to any decision made as a result of a consideration of the Tribunal’s recommendation. Order as to Depersonalised Research Copy [72] Pursuant to clause 19 of Schedule 2 of the Act, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant or her family members. “[NAME]” [NAME] Member