Unlawful Immigrant Appeal Dismissed by Tribunal

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 507169 [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] 28 April 2026

__________________________________________________________________ DEPORTATION (NON-RESIDENT)

DECISION __________________________________________________________________ [1] This is a humanitarian appeal by the appellant, a 44-year-old citizen of Tuvalu, against her liability for deportation, which arose when she became unlawfully in New Zealand. THE ISSUE [2] The primary issue for the Tribunal is whether the appellant has exceptional circumstances of a humanitarian nature having regard to the fact that her two children live in New Zealand. [3] For the reasons that follow, the Tribunal declines the appeal. It orders that the appellant be granted a work visa for a period of four months from the date of this decision so that she can get her affairs in order prior to returning to Tuvalu.

2

BACKGROUND [4] The appellant is divorced. Her two children, who are aged 20 and 22, are [NAME]. They were granted residence in New Zealand in July 2022 as they were included in their father’s (the appellant’s former husband’s) application for residence under the Special Policies (Pacific Access Category) category. They began living in New Zealand in late 2022 and are now New Zealand permanent residents. [5] The appellant’s third child, aged 15, was born in Tuvalu and customarily adopted by the appellant’s brother at birth, with legal adoption taking place in 2021. That child remains living in Tuvalu. [6] The appellant first came to New Zealand in February 2000 as the holder of a student visa. She remained here for nearly two years until January 2002 (with one brief departure). [7] After that period, the appellant mostly lived in Fiji, where she held temporary visas to study or to support her two older children, from 2002 to 2006, and between 2013 to 2022. She periodically visited Tuvalu. [8] The appellant lived and worked in Tuvalu from 2007 to 2012, from June 2022 to March 2023, and from October 2023 to December 2024. [9] The appellant was granted a limited purpose visa under the [NAME] in April 2023, which enabled her to spend five months living in New Zealand between April 2023 and September 2023. After this time, she returned to Tuvalu and had work with [NAME]. [10] In November 2024, the appellant was granted a visitor visa and she returned to New Zealand in December 2024. She was subsequently granted an interim visa and a further visitor visa, which was valid until 1 May 2025. When her further visitor visa expired, she became unlawfully present in New Zealand on 3 May 2025. [11] The appellant lodged this appeal with the Tribunal on 13 June 2025.

3 STATUTORY GROUNDS [12] The grounds for determining a humanitarian appeal are set out in section 207 of the Immigration Act 2009 (the Act): (1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that— (a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and (b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand. [13] The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Immigration Act 1987, the almost identical predecessor to section 207(1): (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand: Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]. THE APPELLANT’S CASE [14] The appellant’s case is set out in submissions made by the appellant (25 June 2025) and can be summarised as follows: (a) The appellant wishes to remain in New Zealand to be close to her two children, so that she can provide the necessary support and guidance to them as they build their lives in New Zealand. (b) The appellant has a background as an educator and with her qualifications, would make a positive contribution to New Zealand. (c) The impact of climate change on Tuvalu makes her future uncertain. The appellant also has no property to return to there and wants to remain in New Zealand where she can have a stable and secure life. Materials and Documents [15] In support of her appeal, the appellant provides the following documents: (a) a questionnaire completed by the appellant about her circumstances in Tuvalu provided in response to the Tribunal’s request;

4 (b) details (September 2024) of the appellant’s [NAME]; (c) two letters (June 2025) from the appellant’s former employers (a primary and secondary school in Vaitapu, Tuvalu); (d) copies of the appellant’s university qualifications (2007 and 2020); (e) support letters (June 2025) from the appellant’s two children and from the appellant’s sister in New Zealand; (f) seven support letters (June and July 2025) for the appellant from members of the [NAME] and [NAME] in New Zealand; (g) copies of support letters (January 2025) from the appellant’s children and sister, as well as copies of their identity documents and details of her daughter’s university enrolment and achievements, previously presented to Immigration New Zealand; and (h) statements (29 March 2026 and 2 April 2026) from the appellant explaining the time she has spent living in Fiji and her temporary visa status there, as well as an explanation (and accompanying adoption documents dated March 2021) regarding the adoption of her third child. ASSESSMENT [16] The Tribunal has considered the submissions and documents provided by the appellant. It has also considered the appellant’s Immigration New Zealand file in relation to her temporary visa applications and its relevant electronic records for her and her family members. Whether there are Exceptional Circumstances of a Humanitarian Nature [17] Exceptional circumstances of a humanitarian nature “must be well outside the normal run of circumstances” and, while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”: [NAME] v Minister of Immigration, at [34].

5 Settlement in New Zealand [18] The appellant has lived in New Zealand for a relatively brief period of about 15 months, of which about five months were holding a visitor visa to remain here lawfully. She has also spent two other brief periods living in New Zealand: for about two years from 2000−2002; and for five months in 2023. [19] It is accepted that, during her most recent stay, the appellant has become settled in her community and contributes to the [COMPANY], as well as [NAME], where she is a valued community member. Letters of support from the [NAME] and [NAME] record her hardworking nature and positive contributions. [20] The appellant has a strong nexus to this country through the settlement of her sister and her two permanent-resident children. It is accepted that her closest family is in New Zealand. While in New Zealand, the appellant has been living with her sister, who supports her remaining in New Zealand so that the appellant can be reunited with her two children. The sister records that the appellant has always supported her and she now wants to be able to assist the appellant, emotionally and practically. Interests of appellant’s children [21] The appellant seeks to remain in New Zealand to be with her two older children, both of whom at the age of 20 and 22 years are young adults. They have lived in New Zealand for over three years and are permanent residents. [22] The appellant’s son, who lives with his father, states that he helps to support the appellant financially. In his letter on appeal, the son explains that the appellant has been a significant source of support for him, and her support has allowed him to pursue his educational and personal goals. The thought of her not being able to remain here is distressing for him as he feels that he needs her support to be successful. [23] The appellant’s daughter is studying at university in New Zealand and lives in a university residence. She explains that the appellant left her job in Tuvalu to come to New Zealand to support her first year of university studies in 2025 and that her mother’s presence is vital for her wellbeing. The appellant’s presence and support in New Zealand provides her with the emotional stability she needs to succeed in her studies.

6 [24] It is submitted that the son’s and daughter’s wellbeing would be affected by the appellant’s departure from New Zealand and that both she and they want her to remain to provide support and guidance to them. It is acknowledged that the children will be upset at not having their mother, a source of support to them, in the country. However, the Tribunal finds that the reality is that the appellant’s children are now young adults. As acknowledged by the appellant, they have settled into life in New Zealand since arriving here with their father, embraced the New Zealand way of life, forming friendships and establishing other connections. While their letters indicate that they value the unwavering support that the appellant provides them, they lived apart from her when they first came to New Zealand and neither of them live with her at present. In addition, they have their father and his new partner here, with whom the son lives, and their [NAME]. While the appellant and her children have close, supportive relationships, the children are at an age where they will be establishing their own, independent, lives. [25] The appellant will be upset and disappointed at being apart from her children as well. To some extent, this can be mitigated by regular contact via telephone and social media. However, there will be significant barriers to them being together in person and her disappointment and sadness at not being able to share their lives in New Zealand is acknowledged. [26] The Tribunal finds that the time that the appellant has spent here, her family nexus through her two children and sister, her children’s interests, and her settlement here through her local [NAME] and [NAME], are not circumstances out of the ordinary for temporary visa holders and persons who remain here unlawfully. The appellant’s settlement, contribution or circumstances in New Zealand, as disclosed, are not “well outside the normal run of circumstances” or “truly an exception rather than the rule” (per Ye) in the context of family migration where her children have become young adults and are embarking on their own lives in New Zealand. Appellant’s prior circumstances including in Tuvalu [27] The appellant lived in Fiji from 2002 to 2006 and then for the most part from 2013 to 2022. She held temporary visas to remain there, granted for the purposes of study or to support her children. Her two elder children were born in Fiji in 2003 and 2006 and are [NAME]. The appellant gained a Bachelor of Arts degree

7 from a university there in 2007. During this time, she states, she periodically visited Tuvalu. [28] The appellant lived and worked in Tuvalu from 2007 to 2012, while caring for her two older children. A letter from the appellant’s employer, a [COMPANY], records that she worked with that school from 2007 to 2011. [29] Other evidence establishes that the appellant’s third child was born in Tuvalu in 2010 and was customarily adopted by the appellant’s brother and his wife after birth. That child has lived with them in Tuvalu since (documents presented on appeal by the appellant indicate that this child was legally adopted in March 2021). A letter of support from the appellant’s cousin, presented on appeal, records that the appellant and her two elder children had moved back to Fiji in 2013 for the children’s schooling. [30] The appellant gained a Postgraduate Diploma in Commerce (Economics) from a [COMPANY] in 2020. Her two older children moved to New Zealand in late 2022 after being granted residence in their father’s residence application in July 2022. The appellant then lived and worked in Tuvalu from June 2022 to March 2023, engaging in work with two [NAME] in Funafuti. She must have had accommodation there although it is not clear with whom she lived in Funafuti. [31] The appellant had work in New Zealand in the [NAME] for five months between April 2023 and September 2023. She then returned to Tuvalu. [32] Prior to coming to New Zealand in December 2024, the appellant states that she was living and working on Vaitupu Island in Tuvalu where she was employed by a [COMPANY] for just over a year from October 2023 to December 2024. The letter from the cousin records that the appellant was a well-known and well-respected teacher in Tuvalu and very involved and connected to the [NAME] and [NAME]. [33] In her statement on appeal, the appellant explains to the Tribunal that she lived on Vaitupu Island for a year with her two brothers and their families on their parents’ house and family land. She says that she cannot return there to live because the accommodation is already overcrowded and she has no entitlement to it as a female member of the family.

8 [34] It is acknowledged that the appellant may face challenges in resettling and re-establishing herself in Tuvalu, particularly in light of the time she has spent living elsewhere, including many years in Fiji. However, the evidence does not establish that she could not access accommodation or the necessities of life upon return. She has previously returned to her parents’ house and family land when other family members had the right to reside there. [35] The appellant has been absent from Tuvalu for a relatively short period of 15 months. She resigned from her employment with the [COMPANY] when she decided to remain in New Zealand. She says on appeal that she believes that school is now fully staffed, but the Tribunal does not accept from her evidence that it is established that she could not find work in a school elsewhere in Tuvalu if that is the case, given her prior work experience. The Tribunal (differently constituted) has recently reviewed the availability of employment in Tuvalu generally in Sikiga [2025] NZIPT 506937 at [39]–[46] and, found there are low levels of employment and challenges. However, in this appeal, the Tribunal is not satisfied that the appellant would not be able to secure employment again in Tuvalu, given that she has previously been a well-known and respected teacher there and has also worked for [NAME]. [36] It is also not established that the appellant could not return to live with her brothers on the family land while she explores her other options. The temporary visa that the Tribunal intends to order be granted to the appellant will give her time to plan and fund her return to Tuvalu. Country conditions in Tuvalu [37] The Tribunal considers the appellant’s general submissions in relation to the current impact of climate change on Tuvalu. [38] The Tribunal has addressed the general conditions in Tuvalu in a number of decisions, including in Taloka [2024] NZIPT 506477, [NAME] [2023] NZIPT 505874 and Tamatoa [2024] NZIPT 506284–285. As The Tribunal states in Taloka at [36]: [T]hat life in Tuvalu, a small country comprised of nine low-lying islands and atolls and a population of approximately 11,000 people, has become increasingly difficult. Problems confronting those in Tuvalu include the impacts of climate change (a source of distress for many there), population growth and density (which places pressure on Tuvalu’s limited natural resources and causes increased waste generation and pollution), challenges in growing food (which has led to reliance on food imports), critical water shortages in times of drought, increasing poverty, limited and overcrowded housing, and high unemployment.

9 [39] The Tribunal in the above decisions also referred to the [NAME]’s [NAME] ([NAME]) Preliminary Environmental and Social Management Plan (February 2022), in which the following prevailing environmental issues in Tuvalu were identified:

1. High climate change vulnerability. Tuvalu is extremely vulnerable to the adverse impacts of climate change, variability, and extreme weather events.

2. Land degradation. Tuvalu [is] experiencing land degradation due to compaction in highly built up and high traffic areas and deformation of landscape due to extraction of embankment/aggregate materials.

3. Coastal erosion is a major problem in Tuvalu, particularly on the western side of the islands.

4. Because [of] the very low elevation, the islands are prone to coastal flooding from strong waves, high tides, and storm surges.

5. Groundwater quality is deteriorating in terms of increased salinity and pollution from pit latrines and septic tanks. This problem gets worse during dry seasons.

6. Illegal dumping of solid waste in the ocean and in abandoned borrow pits, due to the inadequacy of solid waste collection services.

7. The country lies just north of the main cyclone belt and is occasionally affected by tropical cyclones. Tuvalu was severely hit by the [NAME] in 2015. The latest cyclone to affect the country was Tino in 2020 which brought high waves, causing catastrophic flooding.

8. Vulnerability to tsunami. Although not within the geologically active zone of the Pacific Ocean, the very low elevation of most of [the] country’s land mass makes it susceptible to tsunamis originating from geologically active regions. … [40] According to the website of the [NAME] ([NAME]), Geoscience, Energy and Maritime Division (www.spc.int), the appellant’s home island Vaitupu is the largest and second most populated atoll of Tuvalu and home to over 1,500 people. The primary source of drinking water on Vaitupu is rainwater, although in 2015, the [NAME] undertook a geophysical survey of the island’s groundwater resources and identified a small area of potable groundwater. A project to construct an infiltration gallery, which would enable sustainable use of the groundwater at Vaitupu atoll and provide communities with an additional source of water supply during periods of low rainfall and drought, was to be implemented between 2020–2024 and funded by New Zealand’s Ministry of Foreign Affairs and Trade (see “Vaitupu Water Security” at https://gem.spc.int). The Tribunal could find no online report as to whether this project has or has not been completed. It may still be that the primary source of water is rainwater, which must continue to

10 be a concern for the community, including the appellant, at times, despite this being a longstanding issue. [41] As a citizen of Tuvalu, the Tribunal acknowledges that the appellant is from a country that is one of the most susceptible to climate change. However, the impact of climate change is an issue for all Tuvaluans and there is no suggestion that the appellant is being differentially impacted or could not still safely live in Funafuti or Vaitupu. Conclusion on exceptional humanitarian circumstances [42] The Tribunal acknowledges that the appellant has a strong family nexus to New Zealand through her two children and sister. However, as noted above, it is not established that the two children require her presence in New Zealand, given they are young adults who have established themselves in New Zealand with friends and other connections including their father. While they have close relationships with her and value her support and love, the two children are living independently of her and have been since, at least, their arrival in New Zealand in late 2022. They will be able to maintain contact with her in much the same way that they did when they first arrived. [43] The appellant also retains a family nexus to Tuvalu, particularly Vaitupu Island, where she has two brothers and their families residing. The Tribunal acknowledges that the appellant has less close family support there, when compared to her family nexus to New Zealand. A return there may also be challenging, especially initially while she seeks to reestablish herself, securing accommodation and a means of employment. However, the appellant’s absence from Tuvalu has not been for long and, having worked there in two schools as well as [NAME], she will retain a social nexus there, including through her [NAME] and possibly through her connections to the [NAME] in New Zealand. The temporary visa that the Tribunal intends to order should assist her to plan her return. [44] The High Court has stated that circumstances that may cause difficulty, hardship and emotional upset do not meet the statutory threshold of exceptionality unless the circumstances themselves or the consequences can legitimately be characterised as exceptional. Circumstances that are “genuinely concerning” or “compassionate circumstances” are insufficient (see Minister of Immigration v Jooste [2014] NZHC 2882, [2015] 2 NZLR 765).

11 [45] The Tribunal has considered the appellant’s circumstances, and that of her New Zealand-based family members. There is nothing about these circumstances as disclosed that, when considered individually or cumulatively, meets the high statutory threshold so as to give rise to exceptional circumstances of a humanitarian nature. DETERMINATION [46] For the reasons given, the Tribunal finds that there are no exceptional circumstances of a humanitarian nature in terms of the statutory test. [47] An appeal must fail if there are no exceptional circumstances of a humanitarian nature. The Tribunal’s finding that there are none in this case makes it unnecessary to consider either the “unjust or unduly harsh” or “public interest” stages of the inquiry under the statutory test. Exercise of Discretion (section 216) [48] Having declined the appeal, the Tribunal turns its mind to: (a) its absolute discretion under section 215(1) of the Act to order the reduction or removal of any period of prohibition on re-entry to New Zealand that might otherwise apply under section 179; and (b) its discretion under section 216(1), to delay deportation or order the grant of a temporary visa where it considers it necessary to enable the appellant to remain in New Zealand for the purposes of getting her affairs in order. [49] The High Court has held that the phrase “getting affairs in order” means “organising those personal, legal or financial matters that, by reason of personal need or obligation (legal or moral) must be attended to so that deportation will not leave the individual concerned, or those associated with him or her, disadvantaged”: see Chief Executive of the Ministry of Business, Innovation and Employment v Singh [2018] NZHC 272, [2018] NZAR 434 at [20]. [50] Pursuant to section 216(1)(b) of the Act, the Tribunal orders that the appellant be granted a work visa, for a period of four months, commencing on the date of this decision. This is to enable the appellant time to seek employment in Tuvalu and plan for her return there, including arranging accommodation.

12 Certified to be the Research Copy released for publication.

[NAME] Member [51] In Immigration New Zealand’s Visa Pak Issue 564 — Immigration New Zealand position where the Immigration and Protection Tribunal has made a s216 order (1 December 2023), Immigration New Zealand states that where the Tribunal orders the grant of a temporary visa under section 216 to an appellant whose liability for deportation arose from them being unlawfully in New Zealand, a deportation order cannot be served on them during the currency of this visa because they are lawful and no longer liable for deportation. This confirms the position taken by them in submissions to the Tribunal, in AD (Argentina) [2020] NZIPT 505056. On that basis, as long as the appellant leaves New Zealand before the expiry of the visa ordered by the Tribunal, she will not be deemed to be deported under section 10(3)(a)(i) of the Act when she leaves. There is therefore no need for an order under section 215(1) of the Act. [52] The appeal is declined in the above terms. “[NAME]” [NAME] Member