Tribunal Upholds Health-Based Refusal But Recommends Exception for Special Circumstances

OUTCOME: Allowed in Part

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207296 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

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

Before: H Cochrane (Member)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted]

Date of Decision: 4 May 2026 ___________________________________________________________________ [NAME_3]

DECISION ___________________________________________________________________ [1] The appellant is a 76-year-old citizen of South Africa whose application for [NAME_3] under the [NAME_4]) category was declined by Immigration New Zealand. THE ISSUE [2] Immigration New Zealand declined the appellant’s [NAME_3] application because she did not have an acceptable standard of health for [NAME_3] and was not granted a medical waiver. The appellant had a recurrence of stage IV thyroid cancer in August 2024, while her application was being processed. [3] The principal issues for the Tribunal are whether Immigration New Zealand’s decision was correct and, if so, whether the appellant and her family have special circumstances. [4] For the reasons that follow, the Tribunal finds that Immigration New Zealand correctly declined the application, but that the appellant has special circumstances

2 such as to warrant a recommendation that the Minister of Immigration consider an exception to Government [NAME_3] instructions.

BACKGROUND [5] The appellant was orphaned at a young age and raised by extended family in South Africa. She later married and had four children. Her two daughters live in New Zealand. One son lives in the United Kingdom and another son lives in Australia. [6] In 2006, [NAME_5] moved to New Zealand and was granted [NAME_3] in 2007. [7] In 2016, the appellant was diagnosed with thyroid cancer and treated with radioactive iodine therapy. [8] On 23 November 2016, the appellant and her husband submitted an expression of interest under the [NAME_4]) category. Their [NAME_5] daughter supported their application. [9] In 2017, the appellant’s husband died. The appellant sold the family farm and moved into a residential retirement village. [10] In 2018, the appellant had a recurrence of thyroid cancer and received treatment of radioactive iodine therapy. [11] In 2020, the appellant’s younger daughter and her family migrated to New Zealand. [12] In June 2022, the appellant had a further recurrence of cancer and was treated with radioactive iodine therapy. [13] In April 2023, the appellant was declared to be in remission and free of cancer. [14] On 14 August 2023, the appellant was invited to apply for [NAME_3] under the [NAME_4]) category. [15] On 30 September 2023, the appellant arrived in New Zealand as the holder of a parent and grandparent multiple entry visitor visa. Prior to this trip, she had made five short trips to New Zealand.

3 [NAME_3] Application [16] On 30 October 2023, the appellant made an application under the [NAME_4]) category of [NAME_3] instructions. [17] To be granted [NAME_3], all applicants must have an acceptable standard of health unless they have been granted a medical waiver. First medical assessment [18] By letter dated 25 March 2024, Immigration New Zealand advised the appellant that a first assessment of her health indicated that she may not be of an acceptable standard of health for [NAME_3]. This was because a medical assessor had noted that she had a history of thyroid cancer, for which the recurrence rate was approximately 30 per cent. Therefore, she had a condition that was deemed to impose significant costs and/or demands on [COMPANY_7]. [19] On 14 June 2024, counsel provided submissions as to costs for the appellant’s daily medications to manage her chronic conditions of type II diabetes, hypertension and hypothyroidism, as well as a report from a [NAME_16] which, based on her medical history and current medical conditions, concluded that she was well and free from symptoms. If symptoms were to return, the cost of further radioactive iodine therapy in New Zealand would be approximately NZ$25,000. [20] This information was provided to the medical assessor who confirmed their original opinion.

Accordingly, the assessment and updated information was provided to a second medical assessor, who acted as a medical referee. [21] On 26 June 2024, the medical referee confirmed the original medical assessor’s opinion that the appellant did not have an acceptable standard of health because she had a listed condition which was deemed to impose significant costs and/or demands on New Zealand health’s services due to her history of thyroid cancer which had a recurrence rate of approximately 30 per cent. It also noted that she had other conditions (type II diabetes, hypertension and hypothyroidism) which may impose additional costs and/or demands on the health system. [22] By letter dated 27 June 2024, Immigration New Zealand advised the appellant that she did not have an acceptable standard of health and set out the

4 opinions of the original medical assessor and the medical referee. It invited the appellant to provide information in support of a grant of a medical waiver. Second medical assessment [23] On 26 November 2024, counsel provided submissions and evidence in support of a medical waiver. [24] In submissions, counsel conceded that the appellant did not have an acceptable standard of health as she had “metastatic differentiated” thyroid cancer. Further, the appellant provided an updated oncologist’s report (25 November 2024) which advised that, following a fall and hip replacement in August 2024, recurrent thyroid cancer had been found in multiple parts of the appellant’s body. She would not benefit from radioiodine therapy, and instead had been recommended treatment with Lenvatinib, which she had not yet started. It advised that, if she responded well to the drug, there was a possibility that the cancer could be controlled and the size of some of the cancers could shrink. A letter from her general practitioner (22 November 2024) provided the opinion that she was unlikely to place a significant burden on New Zealand’s palliative care. [25] Immigration New Zealand provided this information to the original medical assessor who updated their medical assessment to note: The disputed information is noted, including [the appellant] having a diagnosis of metastatic differentiated thyroid cancer for which recurrence has occurred. This is an A4.10.1 listed condition… [26] The appellant’s medical information, including the additional information, was then sent to a third medical assessor not previously associated with the appellant’s file, who acted as a medical referee. The medical referee confirmed the original medical assessor’s opinion that the appellant did not have an acceptable standard of health because the appellant: [redacted] had a new recent recurrence discovered after a fall and hip injury in August 2024. The appellant is therefore not in remission – the specialist advises radioactive iodine is not indicated but has recommended Lenvatinib. This is a high cost pharmaceutical – [NAME_6] Schedule listed price for this is $41,456.70 per year. [The appellant] will also require ongoing oncology specialist follow-up +/- palliative care services (not currently required but may be in the future – GP’s comment about not burdening palliative care services is noted but subjective). … [27] The medical referee’s opinion went on to note that due to the appellant’s cancer prognosis, it was unlikely that her cardiovascular status would result in any additional significant costs and/or demands on the health system.

5 [28] By letter dated 16 December 2024, Immigration New Zealand advised the appellant that the original medical assessor had been provided with the updated health information and formed the opinion that the appellant was not of an acceptable standard of health because she had a condition listed in A4.10.1 which was deemed to impose significant costs and/or demands on [COMPANY_7]. A medical referee had confirmed the medical assessor’s opinion. Both the medical assessor’s and medical referee’s opinions were set out in the letter. [29] In the same letter, Immigration New Zealand gave the appellant a further opportunity to provide information to be considered in the medical waiver assessment. Medical Waiver [30] On 20 December 2024, counsel provided submissions and documentation in support of granting a medical waiver to the appellant on the basis of the best interests of her grandchildren, the appellant’s settlement and contributions to New Zealand, her daughters’ settlement and financial contribution to New Zealand, the risk of mental harm to her daughters and their children if the appellant were declined a medical waiver and issues of safety and security in South Africa. [31] On 7 January 2025, Immigration New Zealand considered whether to grant a medical waiver. It first set out the considerations it would take into account in the assessment. These were: the appellant’s current medical condition; her prognosis, required treatment and the availability of treatment; the cost of required treatment; the objectives of the health instructions and relevant [NAME_3] instructions; the degree to which the appellant would impose significant costs and/or demands on [COMPANY_7]; the appellant’s immediate family living in New Zealand; the fact that she met all the other requirements for [NAME_3]; and her potential contribution to New Zealand. It also considered that the appellant had five grandchildren in New Zealand and that letters of support stated that her children and grandchildren would suffer significant negative impacts, if the medical waiver was not granted, and the appellant would be unlikely to receive further temporary [NAME_8] to remain in New Zealand. [32] Immigration New Zealand separated these factors into those in favour of, and those against, granting a medical waiver and then weighed them. Those factors in favour of granting a medical waiver included: the appellant had two daughters living permanently in New Zealand; the sponsor’s income represented a

6 contribution to New Zealand which might be lost if she elected to accompany the appellant back to South Africa; that the appellant did not have any conditions listed in instruction A4.60; a return to South Africa would have a negative mental impact on the appellant’s children and their families; the appellant had no family remaining in South Africa; and that the appellant’s condition was not infectious, so there was no risk to public health. Immigration New Zealand also included that the refusal to grant a waiver may negatively impact the appellant because she did not appear to have an alternative pathway to [NAME_3]. [33] Factors against granting a medical waiver were identified as: the appellant’s stage IV differentiated thyroid cancer; that the previous radioactive iodine therapy was not effective and she was now recommended Lenvatinib, a high cost pharmaceutical drug; there was a high probability that the appellant’s medical condition would require health services costing in excess of NZ$81,000, which she would likely reach within two years from the cost of the drug alone; that the costs to the [NAME_7] would be significant; that the oncologist’s report indicated that the appellant’s treatment would be progressive, not curable; that while the sponsor stated that having the appellant return to South Africa would be disruptive to the sponsor’s settlement it did not align with the degree of settlement already achieved by the family; that the economic impact of the sponsor having to return to care for her mother could be mitigated through planning by the other children; that there was nothing to indicate that the appellant was not able to access health care and medical support in her home country; and that the separation of families resulted from the appellant’s children’s decisions to migrate to a country where the appellant did not hold [NAME_3]; and that it did not appear that the sponsor’s children’s best interests would be compromised by the refusal of a medical waiver. [34] Immigration New Zealand then recorded that it was not satisfied that the grant of a medical waiver was justified and set out its reasons for this decision. It found that the appellant’s chronic health conditions and her active cancer, when weighed against the appellant’s and her children’s contributions to New Zealand did not justify the grant of a medical waiver. Immigration New Zealand’s Decision [35] By letter dated 14 January 2025, Immigration New Zealand declined the appellant’s [NAME_3] application because she did not have an acceptable standard of health for [NAME_3] and was not granted a medical waiver (A4.10.a).

7 STATUTORY GROUNDS [36] 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 [NAME_3] 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 [NAME_3] instructions should be recommended. [37] The [NAME_3] instructions referred to in section 187(4) are the Government [NAME_3] instructions contained in Immigration New Zealand’s Operational Manual; see www.immigration.govt.nz. THE APPELLANT’S CASE [38] On 21 February 2025, the appellant lodged this appeal on both grounds in section 187(4). [39] Counsel makes submissions (21 February 2025) that Immigration New Zealand’s medical assessment and subsequent waiver assessment were not correct. These can be summarised as follows: (a) Immigration New Zealand’s handling of the updated medical information was procedurally unfair as it failed to provide an opportunity for comment after the medical assessor changed the appellant’s health status and the reason why she did not have an acceptable standard of health. (b) Further, the second medical referee’s assessment is technically different than that of the medical assessor and therefore, counsel should have been given an opportunity to comment. (c) The medical waiver assessment is incorrect because Immigration New Zealand inappropriately included costs and services that the appellant would impose on [COMPANY_7], failed to consider the appellant’s contribution to New Zealand by investment, and did not appropriately weigh the contribution of the appellant’s

8 adult children and partners, her familial connection to New Zealand and the best interests of her grandchildren. Further Immigration New Zealand erred in finding that the appellant would require health services costing in excess of NZ$81,000. [40] In support of the appellant having special circumstances, counsel submitted that the principle of the best interests of the child as found in the Convention on the Rights of the Child and the principles of family unity as found in the International Covenant on Civil and Political Rights, along with the appellant’s strong ties to New Zealand and the disruption to the New Zealand-based family if she is not permitted to stay, all support such a finding. [41] In support of the appellant’s appeal, counsel provided an updated letter from [NAME_5]’s doctor (21 February 2025) and evidence of the appellant’s grant of an enduring power of attorney to [NAME_5] (7 February 2025). Counsel also provided evidence that the appellant had been granted a medical treatment visitor visa on 13 January 2026, valid for six months. [42] In March 2026, the Tribunal sought updated information relevant to the assessment of the appellant’s special circumstances. In response, counsel provided a report (7 April 2026) from the appellant’s oncologist outlining the appellant’s treatment plan and explaining that she is enrolled in a capped cost programme for her cancer drug and that her tolerance for the drug has been positive; an updated letter from her general practitioner (31 March 2026); and an updated offer of employment (22 December 2025) for [NAME_5]. ASSESSMENT [43] 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 [NAME_3] application and Immigration New Zealand’s relevant electronic records. [44] An assessment as to whether the Immigration New Zealand decision to decline the appellant’s application was correct in terms of the applicable [NAME_3] instructions is set out below. This is followed by an assessment of whether the appellant has special circumstances which warrant consideration of an exception by the Minister of Immigration.

9 Whether the Decision is Correct [45] The application was made on 30 October 2023 and the relevant criteria are those in [NAME_3] instructions as at that time. Immigration New Zealand declined the application because the appellant did not have an acceptable standard of health for [NAME_3] and was not granted a medical waiver (A4.10.a). Acceptable standard of health [46] Under the [NAME_4]) category, an applicant is required, among other things, to meet health requirements for [NAME_3]. (F4.15.1, effective 12 October 2022.) [47] All applicants for [NAME_3] are required to have an acceptable standard of health, unless granted a medical waiver. If an applicant does not have an acceptable standard of health and a medical waiver is not granted, the application must be declined (A4.10.a, effective 4 September 2022). Instruction A4.10 sets out the requirements for an acceptable standard of health: A4.10 Acceptable standard of health (applicants for [NAME_3]) … b. [NAME_9] are considered to have an acceptable standard of health if they are: i. unlikely to be a danger to public health; and ii. unlikely to impose significant costs or demands on New Zealand's health services or special education services; and iii. able to undertake the work on the basis of which they are applying for a visa, or which is a requirement for the grant of the visa. … Effective 04/09/2022 [48] Immigration instruction A4.10.c specifies that if an applicant has a condition listed in A4.10.1 they will be deemed to impose significant costs and/or demands on [COMPANY_7] and will be assessed as not having an acceptable standard of health. [49] Of relevance to this appeal, A4.10.1 at the third bullet point includes: A4.10.1 Medical conditions deemed to impose significant costs and/or demands on New Zealand's health and/or education services …

10 ● Malignancies of organs, skin (such as melanoma) and haematopoietic tissue, including past history of, or currently under treatment. Exceptions are: ● … ● malignancies where the interval since treatment is such that the probability of recurrence is <10 percent Effective 04/09/2022 [50] Where Immigration New Zealand is not satisfied that an applicant has an acceptable standard of health, it must refer the application to a medical assessor (A4.10.d). Instructions A4.40 (effective 25 July 2011) and A4.45 (effective 29 November 2010) set out the procedure that follows such a referral, including the need to seek comment: A4.40 Seeking comment concerning health assessments a. In all cases, an immigration officer must not decline an application on the basis that an applicant does not have an acceptable standard of health, without first seeking comment from the applicant on the report provided by the Immigration New Zealand medical assessor or the Ministry of Education (MoE) advising that the applicant does not meet the requirements of A4.10(b) or A4.15(b). … Effective 25/07/2011 [51] Before an application is declined on the basis that the applicant does not have an acceptable standard of health, the applicant must be given an opportunity to comment on a medical assessor’s report (A4.40.a). Any further information provided in response will be put to the medical assessor for consideration who may either confirm or amend their assessment (A4.40.b). If the medical assessor confirms their original assessment, it will be referred to another medical assessor, acting as a medical referee who will assess whether the appellant is unlikely to impose significant costs or demands on [NAME_7] (A4.45.a.ii). The medical referee’s assessment is final (A4.45.b). Medical waiver instructions [52] Applicants who are assessed as not having an acceptable standard of health may be considered for a medical waiver, unless one of the conditions listed at A4.60.a are present, which are not relevant to the current appeal (A4.60.a, effective 1 December 2021). When assessing if a medical waiver should be granted, Immigration New Zealand must consider the circumstances of an applicant and whether they are compelling enough to justify allowing entry to or for

11 a stay in New Zealand (A4.70.b, effective 15 December 2017). Immigration New Zealand may take into account the following factors: A4.70 Determination of whether a medical waiver should be granted ([NAME_3] and temporary entry) … c. Factors that officers may take into account in making their decision include, but are not limited to, the following: i. the objectives of Health instructions (see A4.1) and the objectives of the category or instructions under which the application has been made; ii. the degree to which the applicant would impose significant costs and/or demands on New Zealand's health or education services; iii. whether the applicant has immediate family lawfully and permanently resident in New Zealand and the circumstances and duration of that [NAME_3]; iv. whether the applicant's potential contribution to New Zealand will be significant; v. the length of intended stay (including whether a person proposes to enter New Zealand permanently or temporarily). Immigration New Zealand’s health assessments [53] The appellant’s medical information recorded a history of thyroid cancer, and she was referred to the medical assessor who formed an initial assessment that she did not have an acceptable standard of health as she had a condition listed in A4.10.1. In accordance with the procedure set out in instructions, the appellant was then provided an opportunity to provide further information to dispute the finding. The medical assessor considered this further information and then confirmed their initial opinion. The appellant’s medical information was subsequently passed to a second medical assessor, acting as a medical referee, who confirmed that the appellant did not have an acceptable standard of health. The procedural fairness of the first health assessment is not in dispute. [54] Rather, counsel submits that the failure of Immigration New Zealand to provide the appellant with an opportunity to comment on the medical assessor’s revised opinion, based on the updated oncologist’s report (25 November 2024), denied the appellant the opportunity to comment on the medical assessor’s report as required by A4.40.a. Counsel submits that this failure was further compounded by the medical referee’s inclusion of reference to palliative care in their opinion, resulting in a different opinion than the first medical assessor.

12 [55] The Tribunal agrees that instruction A4.40.a required Immigration New Zealand to put the medical assessor’s second assessment to the appellant for an opportunity to comment, before using it as the basis to find the appellant did not have an acceptable standard of health. However, the Tribunal finds that the technical breach of instructions did not prejudice the appellant’s application. [56] In both the first and second medical assessments, the basis for which the appellant did not have an acceptable standard of health did not change. She met the third bullet point of A4.10.1 (cited above at [49]). [57] Initially, this was as a result of the appellant’s history of thyroid cancer which had a recurrence rate higher than 10 per cent and then as a result of the updated information indicating the actual recurrence of her cancer. [58] However, the recurrence of her cancer meant that it was also necessary for the medical assessor to provide an updated medical opinion. This led to the medical assessor revising the assessment to matter-of-factly state: … the [appellant] having a diagnosis of metastatic differentiated thyroid cancer for which recurrence has occurred. This is an A4.10.1 listed condition… [59] This second medical assessment was completed on 3 December 2024 and was based on the appellant’s oncologist report dated 25 November 2024. This evidence was specific, accurate and current. The finding mirrored the point conceded in counsel’s submissions of 26 November 2024. Therefore, it is not clear to the Tribunal what kind of information the appellant and counsel could have provided to dispute this finding. [60] Nor does counsel point to any prejudice which resulted from their failure to be provided an opportunity to comment, only noting that further information may have meant that the medical referee would not have considered whether the appellant would need palliative care. However, the Tribunal notes this has no bearing on whether the appellant fell within A4.10.1, but also that the appellant did provide information as to her potential need for palliative care, through a letter from her general practitioner. [61] For the sake of completeness, the Tribunal addresses counsel’s second point, that the medical referee’s opinion is different to the medical assessor’s as the medical referee’s opinion references the possible need for palliative care. Both medical assessors found that the appellant was likely to impose significant costs or demands on [NAME_7] because she had a condition

13 which fell within A4.10.1. The two findings are not different. The Tribunal finds that the medical referee was entitled to include reference to the possible need for palliative care in light of the oncologist’s report which recorded that only limited success in shrinking the cancer was foreseen, and only if the appellant responded well to the recommended drug. Palliative care was relevant for the medical waiver assessment, and it was an appropriate comment from the medical referee, despite the original medical assessor not also commenting on this possible need. [62] The Tribunal is satisfied that the medical referee’s final recommendation, made in accordance with A4.45, provided Immigration New Zealand with a correct basis for concluding that the appellant did not have an acceptable standard of health because she had a condition deemed likely to impose significant costs and/or demand on health services. Medical waiver assessment [63] Having correctly found that the appellant was not of an acceptable standard of health, Immigration New Zealand considered whether the appellant was eligible for a grant of a medical waiver. [64] Counsel submits that the medical waiver assessment was incorrect because Immigration New Zealand inappropriately included costs and services that the appellant would impose on [COMPANY_7] and erred in setting out that the appellant would require health services costing in excess of NZ$81,000. Further, it failed to consider the appellant’s contribution to New Zealand by investment, and did not appropriately weigh the contribution of the appellant’s adult children and partners, the appellant’s familial connection to New Zealand or the best interests of the grandchildren. [65] The Tribunal is satisfied that Immigration New Zealand considered in its waiver assessment the factors set out at instruction A4.70.c as well as the appellant’s current medical condition, her prognosis, the required treatment and availability of the treatment, the impact on the five grandchildren in New Zealand and the fact that the appellant would be able to continue to maintain her relationship with the New Zealand grandchildren through occasional travel. [66] The Tribunal notes that in considering factors against the grant of a medical waiver Immigration New Zealand set out that there was a high probability that the appellant’s medical condition would require health services costing in excess of NZ$81,000 within two years. Counsel correctly notes that this finding of “in excess

14 of NZ$81,000 within two years” was not included in any medical assessor’s opinion. As the appellant had a condition listed in A4.10.1, she was automatically deemed to impose significant costs (which are presumed to be in excess of NZ$81,000), irrespective of the associated services she would require. The Tribunal finds no prejudice to the appellant by the incorporation of “in excess of NZ$81,000 within two years” by Immigration New Zealand when it weighed the appellant’s potential burden on [NAME_11] as a factor against the grant of a medical waiver. [67] In regard to counsel’s submission that Immigration New Zealand failed to consider the appellant’s financial investments as part of her contribution to New Zealand, her investments included an amount already loaned to her [NAME_5] daughter and money held in overseas accounts in South Africa. The evidence provided did not confirm the appellant’s ability to divest her investments or her intention to bring them to New Zealand. [68] Immigration New Zealand undertook a weighing of the factors both for and against granting a medical waiver. It found the appellant’s and her family member’s contributions including her sponsor’s economic contributions, while significant, did not outweigh the medical assessor’s finding that the appellant’s cancer including high level of interventions and costly drug treatment would impose significant cost and/or demands on [NAME_11]. Counsel submits that Immigration New Zealand did not appropriately weigh a number of different factors. However, upon review of the submissions, the evidence provided and Immigration New Zealand’s weighing procedure, the Tribunal finds that when balancing the high prospective costs of the appellant’s condition and potential burden on the [NAME_7] against her potential contribution and her familial nexus to New Zealand, it was open to Immigration New Zealand to find her circumstances were not sufficiently compelling to justify waiving the health requirements. Conclusion on correctness [69] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application for [NAME_3] was correct. A medical assessor and two medical referees considered that the appellant having been diagnosed with metastatic differentiated thyroid cancer and then having a recurrence occur all found that the appellant had a condition deemed to impose significant costs and/or demands on [COMPANY_7] (A4.10.1). Because she had a

15 deemed condition, the appellant was not of an acceptable standard of health (A4.10.c). While Immigration New Zealand considered the grant of a medical waiver, it found that the appellant’s circumstances were not sufficiently compelling to justify waiving the health requirements (A4.70), a finding that was open to it based on the evidence and competing interests before it. Whether there are Special Circumstances [70] 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 [NAME_3] instructions. [71] 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. [72] Special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”; [NAME_12] v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J. Personal and family circumstances [73] The appellant is a 76-year-old citizen of South Africa. Her husband died in 2017, and she moved into a gated retirement village in July 2019. The appellant has four adult children living in three different countries. Her two daughters live permanently in New Zealand with their families, which include five grandchildren aged 13 to 20 years old. The appellant’s [NAME_5] son is living in Australia where he has lived for the last two decades with his New Zealand-born wife. The younger son, his wife and four children live in the United Kingdom. The appellant also has four maternal cousins living in New Zealand. Having been orphaned at a young age, the appellant has maintained strong bonds with these cousins. [74] The last of the appellant’s children migrated in 2020 with the appellant’s encouragement to do so for the sake of her grandsons’ future, despite this resulting in leaving the appellant with only one remaining relative, an elderly aunt, in South Africa.

16 [75] While the appellant has been living with her [NAME_5] daughter since arriving in New Zealand, she has also visited and spent time in both her younger daughter’s and Australian-based son’s homes. The family members’ contribution to and settlement in New Zealand [76] [NAME_5] was granted [NAME_3] in New Zealand in 2007 under the Skilled Migrant category. She was employed in a financial management role with a regional council for approximately four years and has recently moved industries to take up a management role in private healthcare. Since arriving in New Zealand, she has also undertaken tertiary study, gained a Bachelor of Business degree and qualified as a chartered accountant. Her husband is employed in an administrative managerial role at a local New Zealand-based company. They have lived in the same community for the last 16 years, where all three daughters were born, and the couple hold board positions for their local schools. They became New Zealand citizens in 2013. [77] The younger daughter moved to New Zealand in January 2020 and was granted [NAME_3] under the 2021 Resident Visa category in January 2022. She and her family have settled in a different part of New Zealand where they have purchased their first home, and their sons, aged 18 and 20, have finished their secondary education and are pursuing local apprenticeships. The younger daughter has two part-time jobs, which she has held for the last four years, and her husband is employed as a mechanical engineer. Once eligible, the family will apply for New Zealand citizenship. [78] The Tribunal accepts that both families are well-settled and wish to remain in their current communities where they are making contributions to New Zealand through their employment and volunteer work. Best interests of the grandchildren [79] The Tribunal has an obligation to have regard to the best interests of any children affected by the outcome of the appeal, under Article 3(1) of the 1989 Convention on the Rights of the Child. The best interests of the children are a primary consideration and must be afforded substantial weight; [NAME_13] v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [49]. The appellant has five grandchildren in New Zealand but only the youngest two meet the Convention’s Article 1 definition of a child as being below the age of 18. These are the two daughters of her [NAME_5] daughter.

17 [80] The best interests of a child must be considered having regard to their particular circumstances and the nature and quality of the relationships which they have in New Zealand. The appellant’s two granddaughters are 13 and 16 years old. They were born and raised in New Zealand and have lived with the appellant for the last three years. Both girls have provided letters of support (July 2024) for the appellant which set out how their relationship has developed with their grandmother since she has arrived in New Zealand. [81] A letter from the family’s doctor (10 February 2025) records that the granddaughters have been experiencing increasing signs of anxiety. The 13 year old has started fainting as a reaction to stress and becomes tearful and withdrawn at the thought of the appellant having to leave. [82] The Tribunal accepts that both granddaughters have built meaningful relationships with the appellant since she began living with them in September 2023 and her absence would be acutely felt. Even the anticipation of the departure has caused distress for the youngest granddaughter. However, both girls are living in a stable environment with access to both parents, and in a community in which they have lived all their lives. The multiple avenues of support available from this well-established environment would help them navigate the loss of the daily and in-person relationship with their grandmother, if she were to leave. The granddaughters are also of an age where they would be able to maintain a relationship through remote means. The granddaughters’ best interests do not, on their own, require that the appellant be granted a resident visa. Immigration history [83] Prior to arriving in New Zealand in September 2023, the appellant made a number of trips to New Zealand as the holder of temporary [NAME_8]. Her initial trip was to attend her [NAME_5] son’s wedding to a New Zealand citizen in 1999. [NAME_5] arrived in 2007 and was granted [NAME_3] in 2008, and the appellant returned to visit her and her family. The appellant lodged her expression of interest for the [NAME_4]) [NAME_3] category in 2016 and waited seven years before she was invited to apply and made her application in October 2023. [84] When arriving in New Zealand in September 2023, the appellant held a parent and grandparent multiple entry visitor visa. She currently holds a medical treatment visitor visa, valid until 13 July 2026.

18 Character, English language and health requirements [85] The appellant met the character and English language requirements for [NAME_3]. She provided clear police certificates from South Africa (24 September 2023) and New Zealand (7 December 2023). However, as discussed above, Immigration New Zealand correctly found that the appellant did not meet the health requirements for [NAME_3] and was not granted a medical waiver in January 2025. The appellant’s health [86] The appellant was diagnosed with stage IV differentiated thyroid cancer in 2016 and was treated with six cycles of radioactive iodine therapy over the next six years. She was in remission as of April 2023, having had a good response to the treatment she received, and her doctor noted that the five-year survival rate for stage IV thyroid cancer was approximately 30 per cent. A [NAME_16] provided a report (13 June 2024) recording that the appellant’s cancer appeared to be slow (as she was diagnosed eight years from the time of writing) and had a very good partial response and sensitivity to radioiodine treatment. [87] However, following a fall and hip replacement in August 2024, investigations discovered that the cancer had returned and that it did not appear to be sensitive to radioactive iodine therapy. In November 2024, the appellant was recommended for treatment with Lenvatinib with the duration of the treatment depending on her tolerance to the drug. [88] Updated medical information provided to the Tribunal records that the appellant began treatment with Lenvatinib in May 2025 and her oncologist recorded that she has tolerated it well. Her treatment plan foresees her continuing on Lenvatinib on an open-ended basis, as her cancer is not curable. Her prognosis is variable, “ranging from months to years” and is dependent on the drug’s continued effectiveness. To date the appellant has self-funded her treatment through the drug manufacturer’s capped cost programme. She is approximately NZ$2,900 away from reaching the programme threshold, which will allow her to receive the drug in New Zealand from the manufacturer at no further cost. [89] The appellant has reduced mobility (as a result of cancer metastases to the bone) but continues to remain independent in her personal care. She requires

19 assistance with household tasks and her family provides a high level of emotional support and informal care on a daily basis. [90] Apart from the appellant’s thyroid cancer, a letter from her South African doctor (10 October 2023) recorded that her type II diabetes, hypertension and hypothyroidism were each well controlled with medication. A letter from [NAME_14] (7 May 2024) recorded that she continued to be on a number of daily medications commonly associated with those conditions. Situation in South Africa [91] [NAME_5] fears that, if the appellant is forced to return to South Africa, she could be at risk of robbery or assault due to the prevalence of violent crime in the country. She says that the family knows of individuals who have been the victims of such crimes. The appellant would return to the same retirement community where she previously held a rental unit. Although she was never a victim of a crime, she knows of other members of the community who were. [92] The appellant previously received treatment for her thyroid cancer through radioiodine therapy, but her cancer is no longer responsive to that treatment. Her most recent oncologist report also records that there is no assurance that the appellant could continue with similar access to Lenvatinib in South Africa and her participation in the capped cost programme is contingent on her receiving it in New Zealand. Discussion on special circumstances [93] The appellant is a widowed 76-year-old woman whose four adult children no longer live in South Africa. Her two daughters are well-settled in New Zealand with the younger daughter and her family leaving South Africa in 2020, following the appellant’s encouragement. [94] At the time of her invitation to apply for [NAME_3], the appellant had been declared cancer-free months earlier. The discovery of the recurrence of her cancer in August 2024 not only meant that she was not able to meet [NAME_3] instructions, but that the cancer had metastasised and was no longer considered curable. Since that time the appellant and her family have self-funded a drug to which she has responded well. As part of the capped cost programme, she will

20 shortly be eligible to continue on the drug at no cost to her nor to the [NAME_7] if she were to be granted [NAME_3]. [95] In South Africa, the appellant has only one remaining elderly family member living there and no available family support. While she was fully independent when she left in September 2023, she now has reduced mobility and requires daily support which she currently receives from her family with whom she lives. Her general practitioner and oncologist are both located in the younger daughter’s region which presumably has better access to medical services than [NAME_5]’s more rural region, indicating that both daughters have shared care of the appellant since the recurrence of her cancer. [96] Being in New Zealand over the last three years, the appellant has built relationships with her two youngest granddaughters during their early teenage years. She has also been able to reconnect with her two grandsons with whom she previously lived in South Africa. The appellant has been surrounded by family since her arrival in New Zealand. Her daughters and their families ensure that her daily needs are met and, if the appellant is granted [NAME_3], they will be able to continue to do so for the time remaining to the appellant. Conclusion on special circumstances [97] Having regard to the circumstances of the appellant and her family, the Tribunal finds that the appellant has special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to [NAME_3] instructions. DETERMINATION [98] Pursuant to section 188(1)(f) of the Act, the Tribunal confirms the decision of Immigration New Zealand to be correct in terms of the applicable [NAME_3] 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. [99] Pursuant to section 190(5) of the Act, the Minister of Immigration:

21 Certified to be the Research Copy released for publication.

H Cochrane Member (a) is requested to consider whether a [NAME_3] [NAME_10] visa should be granted, as an exception to [NAME_3] instructions, to the appellant; and (b) may, if granting a resident visa, impose conditions on the visa in accordance with section 50 of the Act. [100] 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 [101] 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 her identification. “H Cochrane” H Cochrane Member