Tribunal Upholds Rejection of Parent Retirement Residence Application

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 207402 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

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

Before: [NAME] (Member)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 24 April 2026 ___________________________________________________________________ RESIDENCE

DECISION ___________________________________________________________________ [1] The appellant is a 57-year-old citizen of China whose application for residence under the Family ([APPELLANT]) category was declined by Immigration New Zealand. The application included her partner, aged 55, also a citizen of China. THE ISSUE [2] Immigration New Zealand declined the appellant’s residence application because the appellant had not demonstrated that her nominated funds or assets were legally earned or acquired in China, and she had not nominated NZD500,000 of settlement funds. [3] The [NAME] issue for the Tribunal is whether Immigration New Zealand’s decision was correct.

2 [4] For the reasons that follow, the Tribunal finds that Immigration New Zealand correctly declined the application. The Tribunal also finds that the appellant does not have special circumstances such as to warrant a recommendation that the Minister of Immigration consider an exception to Government residence instructions.

BACKGROUND [5] The appellant and her husband married in 1992, in China. They have one daughter, who lives in New Zealand. [6] The daughter first travelled to New Zealand in 2012 as the holder of a student visa. She was granted a resident visa under the Skilled Migrant category of instructions in 2018 and a permanent resident visa in 2020. She has two children with her partner. Residence Application [7] On 27 February 2023, the appellant made an application under the Family ([APPELLANT]) category of residence instructions. Under this category, she was required to nominate funds and/or assets for investment in New Zealand equivalent in value to at least NZD1 million, that they had been legally earned or acquired, and that she owned at least NZD500,000 in settlement funds. [8] The appellant nominated a property in China which she owned jointly with her husband and daughter, valued at RMB6.6million (then equivalent to NZD1.53 million), as both her investment and settlement funds. [9] Counsel provided various documents with the appellant’s application, including a market value appraisal for the nominated property, copies of the appellant’s “comprehensive income payment and individual tax withheld” statements (income tax statements) between January 2020 and October 2022, and bank statements in the husband’s name between November 2019 and November 2022. Immigration New Zealand’s Concerns [10] Immigration New Zealand made several requests to counsel for further information.

3 [11] On 23 July 2024, Immigration New Zealand sought further evidence that her nominated investment and settlement funds and/or assets had been earned or acquired legally, including a cover letter explaining how she legally earned or acquired funds to purchase her nominated property, a certified property purchase agreement and tax invoice for the property purchase, and any relevant mortgage or loan documents and personal income tax statements to demonstrate that she had sufficient financial capacity to purchase the property. It also sought updated information on the appellant’s nominated settlement funds. [12] On 27 September 2024, Immigration New Zealand advised counsel that it had a number of concerns regarding the appellant’s application. It had not received responses to its previous requests for information and, among other things, was concerned that the appellant had not demonstrated that she had legally earned or acquired her nominated asset as required by instructions. It was also concerned as to whether the appellant had nominated NZD500,000 in settlement funds and she had demonstrated ownership of these funds. Appellant’s Response to Immigration New Zealand’s Concerns [13] On 18 October 2024, counsel stated that the appellant confirmed that she and her husband had purchased their nominated property using savings from income and earnings. He reattached copies of the appellant’s income tax statements between January 2020 and October 2022. [14] As to the appellant’s nominated settlement funds, counsel asserted that the appellant’s property had been valued at NZD1.53 million, with NZD1 million as the appellant’s investment funds and the balance for the appellant’s settlement funds. Counsel provided, among other things, a document from the [NAME] (9 November 2022) titled “Natural conditions and co-ownership, mortgage and restrictions”, which stated that there was no mortgage registration on the nominated property. [15] Counsel later provided further evidence, including a “uniform invoice and pre-sale contract” (4 August 2007) for the nominated property, the property title, copies of the appellant’s bank statements between January 2023 and January 2024 and the husband’s bank statements between January 2023 and October 2024. The “uniform invoice” invoice sheet recorded that the property purchase price was RMB913,276 and that “pre-receivables” were RMB200,000.

4 Immigration New Zealand’s Decision [16] On 7 April 2024, Immigration New Zealand declined the appellant’s application on two grounds. [17] First, Immigration New Zealand was not satisfied that the appellant had demonstrated that she had legally earned or acquired the nominated investment funds and/or assets in accordance with F3.5.a.ii and F3.10.5. This was because the appellant’s tax income statements, which Immigration New Zealand referred to as her “Employer Social Security and Wage Records”, from January 2020 to October 2022 did not demonstrate that she had the financial capacity to pay the RMB200,000 pre-receivables in 2007, as per the invoice sheet and pre-sale contract, or to service a home loan thereafter. [18] Second, Immigration New Zealand was not satisfied that the appellant had nominated NZD500,000 of settlement funds as required by F3.5.a.iv, F3.15.5.a and F3.15.10. The nominated property’s ownership certificate showed that the property was jointly owned by the appellant, her husband and their daughter. Immigration New Zealand therefore considered that the appellant and her husband owned two thirds of the property only, that is, RMB4,400,000 or NZD1,060,334. This meant that only NZD60,334 was available as settlement funds after deducting NZD1 million for the investment funds and/or assets. STATUTORY GROUNDS [19] 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. [20] 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.

5 THE APPELLANT’S CASE [21] On 20 May 2025, the appellant lodged this appeal on both grounds in section 187(4). [22] Counsel submits (20 May 2025) that Immigration New Zealand’s decline decision breached fairness obligations at instruction A1.5 in the following ways: (a) Immigration New Zealand incorrectly concluded that the appellant did not have financial capacity to pay the nominated property pre-receivables and housing loan. The uniform and pre-sale contract document records that the property was sold for RMB913,276, of which RMB200,000 was paid on the date of the invoice (4 August 2007). (b) Immigration New Zealand disregarded the property appraisal, the [NAME] and the appellant’s evidence of her financial capacity. It therefore failed to consider all known relevant information and incorrectly concluded that a housing loan had been taken out against the nominated property. (c) Immigration New Zealand’s concerns regarding the pre-receivables and the housing loan were new concerns and not raised with the appellant prior to its decision to decline the application. Immigration New Zealand therefore did not inform the appellant of information that may harm her application or give her the opportunity to respond. (d) The appellant’s daughter was 14 years old when the nominated property was purchased and did not contribute to its purchase. Immigration New Zealand did not put its concern that the appellant and her husband owned two thirds of the property only to her for comment. As such, the appellant was unable to explain that it is common practice to include children in joint property ownership in China or to amend the property ownership structure to exclude the daughter. Immigration New Zealand therefore did not inform the appellant of information that may harm her application or give her the opportunity to respond.

6 [23] Counsel submits that the appellant has special circumstances because her and her husband’s only child lives in New Zealand as a permanent resident, with their two grandchildren. The appellant and her husband desire to make New Zealand their home so as to be with their daughter and grandchildren and, but for the incorrect decision of Immigration New Zealand, would have been granted residence under the Family ([APPELLANT]) category. [24] In support of the appeal, and in addition to information already provided to Immigration New Zealand, counsel provided the following documents: (a) A statutory declaration (29 May 2025) from the daughter, explaining her inclusion on the nominated property title and confirming that she can be removed from the title if necessary. (b) A [NAME] document (24 May 2025) which includes a page titled “Natural conditions and co-ownership, mortgage and restrictions”. Further information provided on appeal [25] The Tribunal cannot consider further information provided by an appellant that was not before Immigration New Zealand at the time that it made its decision to decline the application (section 189(1) of the Act), unless an exception applies. [26] The daughter’s statutory declaration did not exist at the time Immigration New Zealand made its decision and there is no exception at section 189(3)(a) of the Act that allows the Tribunal to take it into consideration of its assessment of the correctness of Immigration New Zealand’s decision. [27] The [NAME] appears to contain information that existed at the time Immigration New Zealand made its decision. This evidence consists of two pages: the first page has not previously been provided to Immigration New Zealand, but the second page is almost identical to a document previously provided to Immigration New Zealand, being a [NAME] document titled “Natural conditions and co-ownership, mortgage and restrictions”. There are small differences between the second page and the document previously provided, which appear to be attributable to translation differences, with the main difference being the owner of the information and when each document was requested: [NAME] with a query time on 24 May 2025 and

7 [NAME], with a query time on 9 November 2022. [28] In such circumstances, the Tribunal is satisfied that the second page of the [NAME] document was before Immigration New Zealand at the time it made its decision and can therefore be considered by the Tribunal in its assessment of the correctness of Immigration New Zealand’s decision as it is not further information. However, although it appears the first page may have existed at the time of Immigration New Zealand’s decision, there is no explanation as to why it could not, with reasonable diligence, have been provided to Immigration New Zealand. As such, the exception at section 189(3)(a)(ii) does not apply to this page. [29] Both the statutory declaration and the [NAME] document will be considered, as relevant, in the Tribunal’s assessment of whether the appellant has special circumstances (see section 189(3)(b)). This assessment is set out below at [45]. ASSESSMENT [30] The Tribunal has considered the submissions and documents provided on appeal and the files provided by Immigration New Zealand in relation to the appellant’s residence application and her daughter’s residence application, and Immigration New Zealand’s relevant electronic records. [31] An assessment as to whether the Immigration New Zealand decision to decline the appellant’s application was correct in terms of the applicable residence instructions is set out below. This is followed by an assessment of whether the appellant has special circumstances which warrant consideration of an exception by the Minister of Immigration. Whether the Decision is Correct [32] The application was made on 27 February 2023 and the relevant criteria are those in residence instructions as at that time. Immigration New Zealand declined the application because the appellant had not demonstrated that she had legally earned or acquired her nominated investment asset or that she had the required settlement funds.

8 Relevant instructions [33] The Family ([APPELLANT]) category of instructions requires the [NAME[NAME] to nominated funds or assets of at least NZD1 million and NZD500,000 of settlement funds, and to demonstrate ownership of these funds and assets and that they have been legally earned or acquired: F3.5 [APPELLANT] requirements a. For an application to be approved under the [APPELLANT] the [NAME[NAME] must: i. nominate funds and/or assets equivalent in value to at least NZ$1 million and undertake to invest them in New Zealand for a period of four years; and ii. demonstrate ownership of these funds and/or assets and that they have been legally earned or acquired; and iii. … iv. nominate NZ$0.5 million of settlement funds and demonstrate ownership of these funds and/or assets; and … Effective 29/11/2010 [34] Investment funds and/or assets may be owned jointly by a [NAME] and must have been earned or legally acquired: F3.10.1 Ownership of nominated funds and/or assets a. Nominated funds and/or assets may be owned either: i. solely by the [NAME[NAME]; or ii. jointly by the [NAME[NAME] and partner who are included in the resident visa application, provided a [NAME] is satisfied the [NAME[NAME] and partner have been living together for 12 months or more in a partnership that is genuine and stable (see R2.1.15 and R2.1.15.1(b) and R2.1.15.5(a)(i)). If so, the [NAME[NAME] may claim the full value of such jointly owned funds or assets for assessment purposes. b. … c. The [NAME[NAME] may only nominate funds and/or assets that they earned or acquired legally, including funds and/or assets which have been gifted (with the exception of New Zealand based-funds or assets) to them unconditionally and in accordance with local law. …. …

9 F3.10.5 Definition of 'funds earned or acquired legally' a. Funds and/or assets earned or acquired legally are funds and/or assets earned or acquired in accordance with the laws of the country in which they were earned or acquired. b. [NAME] have discretion to decline an application if they are satisfied that, had the funds and/or assets been earned or acquired in the same manner in New Zealand, they would have been earned or acquired contrary to the criminal law of New Zealand. Effective 30/07/2012 [35] As to settlement funds, instruction F3.15.5.a (effective 30 July 2012) sets out that these funds are additional to the nominated investment funds. Further, where settlement funds are owned “jointly by the [NAME[NAME] and a person other than their partner, the [NAME[NAME] may only claim the value of that portion of the funds or assets for which they provide evidence of ownership” (F3.15.10.c, effective 30 July 2012). [36] Immigration New Zealand is required to deal with applications fairly, which includes properly considering the application, considering all known information, informing an [NAME] of information that may be harmful to their application and giving them a reasonable opportunity to respond to harmful information (A1.5.a, effective 29 November 2010). Under the same instruction, Immigration New Zealand is also required to give appropriate reasons for its decisions. Whether the appellant legally earned or acquired her nominated investment asset [37] The appellant nominated a property which she jointly owned with her husband and daughter as her investment asset (with the remainder of the property’s value nominated as her settlement funds). As such, she was required to demonstrate that she had legally earned or acquired the property when it was purchased. The property purchase began in 2007 (according to the uniform invoice and pre-sale contract document) and was completed in 2008 (according to the [NAME] document). [38] The fundamental problem for the appellant is that although counsel informed Immigration New Zealand that she and her husband had purchased the property using savings from income and earnings, he did not provide any evidence that [NAME] had sufficient funds at the time of the purchase to complete the transaction. The evidence given to Immigration New Zealand was bank statements between 2019 and October 2024 and the appellant’s income tax statements between January 2020 and October 2022. This was more than

10 10 years after the property was purchased and did not demonstrate that they had sufficient savings from income and earnings at the time of the purchase to pay either the pre-receivable invoice (on 4 August 2007) or the balance of the property purchase price, noting that the [NAME] document stated that there was no mortgage registration on the nominated property. [39] Because no evidence of [NAME]’s finances at the time the property was purchased was provided to Immigration New Zealand, the Tribunal finds that it was correct to find that the appellant had not demonstrated that she, and her husband, had legally earned or acquired their nominated investment asset, as required by F3.5.a.ii, F3.10.1.c and F3.10.5.a. Without demonstrating that her nominated investment asset had been legally earned or acquired, the appellant’s application could not succeed and Immigration New Zealand’s decline decision was therefore correct. [40] In reaching this finding, the Tribunal acknowledges that Immigration New Zealand appeared to have raised new issues relating to the investment asset that it had not previously put to the appellant for comment. It is not clear why Immigration New Zealand was concerned about [NAME]’s ability to service a housing loan when the invoice sheet records “Remarks: Loan” but does not give a loan amount and the [NAME] document records that there is no mortgage on the property. Regardless, Immigration New Zealand never put its concern that the appellant was unable to service a housing loan at the time she purchased the property to her for comment [41] Immigration New Zealand’s raising of a new issue in its decline letter is a breach of the requirement at A1.5.a of instructions to put potentially harmful information to an [NAME] and allow them time to comment. However, a breach of procedural fairness does not, of itself, automatically render Immigration New Zealand’s decision incorrect. There must also be prejudice to an [NAME] (see AB (Victims of People Trafficking) [2018] NZIPT 204216 at [60]). [42] In this case, the Tribunal is satisfied that there has been no prejudice to the appellant. Immigration New Zealand correctly raised its concerns as to how she purchased the nominated investment asset (the property) and provided the appellant with multiple opportunities to respond. Her evidence in response (the bank statements from 2019 onwards and tax income records between 2020 and 2022) was inadequate to demonstrate that the property had been legally earned or

11 acquired, regardless of whether there was a housing loan, and her application could not succeed. [43] The Tribunal has found that Immigration New Zealand was correct to decline the appellant’s application on the ground that she had not demonstrated that she had legally earned or acquired the property. It is therefore not necessary for the Tribunal to consider Immigration New Zealand’s second ground of decline. Conclusion on correctness [44] The Tribunal finds that Immigration New Zealand’s decision to decline the appellant’s application for residence was correct. The appellant had not demonstrated that she and her husband had legally earned or acquired their nominated investment asset (the property), as required by F3.5.a.ii and F3.10.5.a. Whether there are Special Circumstances [45] 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. [46] 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. [47] 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, and immigration history [48] The appellant lives in China, with her husband of over 30 years. [NAME] have one adult daughter, who resides in New Zealand. [NAME]’s parents are deceased and they have one sibling each, both living in China. [49] In China, the appellant worked as a physical education teacher from 1990 until her [APPELLANT] in 2024. Her husband has worked in the [NAME] since 1990 and is currently the director of a [COMPANY].

12 [50] The appellant first travelled to New Zealand in 2015 with her husband, as the holders of visitor visas. Since then, they each have been granted various visitor visas. The appellant has returned here eight times, most recently between September and December 2025. Her husband has returned here five times, most recently for 10 days in July 2023. The longest period for which the appellant has remained in New Zealand is approximately six months, between July 2024 and January 2025. The longest period which her husband has remained in New Zealand is 18 days between June and July 2017. The appellant’s family in New Zealand [51] [NAME]’s daughter has lived in New Zealand since 2012. She became a New Zealand resident in 2018, under the Skilled Migrant category as a chef, and a permanent resident in 2020. Her partner, also from China, was included in her residence application as a [NAME[NAME]. They have two children. [52] Counsel submits that it is a special circumstance that the appellant and her husband’s only child and their two grandchildren live in New Zealand. However, it is not uncommon, where adult children have emigrated to another country, for parents as they age to wish to join them. To date, the family have maintained their relationships through regular travel and the evidence before the Tribunal does not demonstrate that they will be unable to do so in the future. [53] 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] v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at [49]. [54] The daughter has stated in her statutory declaration on appeal that she is busy caring for her “two young children”. It is reasonable to infer that they will have built a relationship with their grandparents, when they have been in New Zealand. However, the daughter and her partner will remain responsible for the adequate care and support of their children, and the evidence before the Tribunal does not demonstrate that they are unable to provide this without assistance from the appellant or her husband. Nor does it demonstrate that the grandchildren’s best interests require a grant of residence to the appellant and her husband as an exception to instructions.

13 Health and character requirements [55] Immigration New Zealand was satisfied that the appellant and her husband met the requirements of health instructions. [56] [NAME] did not provide notarial police certificates from China and Immigration New Zealand was therefore not satisfied that they met the requirements of character instructions. However, there were “criminal clearance certificates” from China for the appellant (17 November 2022) and her husband (18 November 2022), which record that they do not have criminal records. [57] The evidence before the Tribunal does not suggest that either the appellant or her husband have criminal records in China and the Tribunal considers the question of their respective characters to be a neutral factor in its assessment of their special circumstances. Discussion on special circumstances [58] The appellant and her husband are citizens of China, where they have lived almost all their lives and where their siblings continue to reside. The appellant has retired from her employment as a physical education teacher, while the husband continues to hold employment as the director of a [COMPANY]. [NAME] appear to have clean criminal records. [59] [NAME] wish to join their daughter and grandchildren in New Zealand, where they reside permanently. However, [NAME] have never settled in New Zealand. They have maintained their relationships with their daughter and grandchildren by regular visits and there is no suggestion that they will be unable to continue to do so. Their desire to reunite with their daughter is not, of itself, a special circumstance. Nor has it been demonstrated that the grandchildren’s best interests necessitate a grant of residence to the appellant and her husband as an exception to instructions. Conclusion on special circumstances [60] Having regard to circumstances of the appellant, her husband and their family members, the Tribunal finds that, considered cumulatively, they do not have special circumstances that warrant a recommendation that the Minister of Immigration consider an exception to residence instructions.

14 DETERMINATION [61] This appeal is determined pursuant to section 188(1)(a) of the Immigration Act 2009. The Tribunal confirms the decision of Immigration New Zealand to decline the appellant's application for residence as correct in terms of the applicable residence instructions. The Tribunal does not consider that the appellant has special circumstances which warrant consideration by the Minister of Immigration as an exception to those instructions under section 188(1)(f) of the Act. [62] The appeal is unsuccessful. Order as to Depersonalised Research Copy [63] 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 husband.

“[NAME]” [NAME] Member