Residence Appeal

“Special Circumstances” - A key to a successful Residence Visa Appeal

Wanting to submit a resident visa application but you do not meet all the immigration requirements?

Maybe your English test does not meet the required passing mark. Maybe you are a few years older than the maximum age. Maybe your relationship with your partner ends before the processing of your application is complete.

In most cases, Immigration New Zealand (INZ) has limited power to approve residence visa applications if you do not meet all requirements. Even if INZ wants to grant you a visa, they typically lack the authority to do so if the necessary criteria are not met.

However, a resident visa decline does not always mean the door is permanently closed. In fact, an opportunity for a residence visa appeal is open once your residence visa application is declined. Your appeal will be considered by the Immigration and Protection Tribunal (‘IPT’). Moreover, the IPT can still grant you residence, even if you do not meet all the requirements.

The Judges and Tribunal members at the IPT have delegated powers to consider residence visa appeals. Under Section 187(4) of the Immigration Act 2009, there are two grounds for residence visa appeals. Firstly, if IPT finds that INZ’s decision to decline an application is incorrect, they can order INZ to conduct a reassessment by another officer who will have a fresh look at your application. 

However, in an event where the IPT finds that INZ’s decision is correct, the IPT still has another power under section 187(4)(b) Immigration Act 2009 to recommend to the Minister of Immigration that a resident visa should be granted as an exception to instructions, due to the ‘special circumstances’ of the appellant.

The Court has defined the meaning of special circumstances as follows: ‘circumstances that are uncommon, not commonplace, out of the ordinary, abnormal’. The requirement for ‘special circumstances’ to be established means that not all appeals to the IPT will be successful.

However, past IPT decisions demonstrate that there are certain factors which they deem highly relevant when it comes to establishing whether special circumstances exist. Some of these factors are as follows:

• Strong Familial Ties to New Zealand

The Immigration and Protection Tribunal (IPT) will assess your familial connections. If most of your immediate family are New Zealand residents or citizens, this is generally a positive factor in your appeal. However, the IPT will also compare the strength of your family ties in New Zealand to those in your home country.

• Circumstances for Not Meeting Residence Requirements

The IPT will examine why you do not meet the residence requirements and whether you can meet them in the future.

Example 1:

A 30-year-old single professional earning a median wage who falls just short of the English test score may not have a strong case for an appeal, especially if they have four years remaining on their work visa. If they work 40 hours a week, Monday through Friday, the Immigration and Protection Tribunal (IPT) may conclude that they have sufficient time on weekends to improve their English and meet the requirements in the future while their work visa is still valid.

Example 2:

A 55-year-old bus driver from a conservative country. He works 45 hours a week on an ever-changing roster, including weekends, and has two children who have grown up and attended school in New Zealand and have never lived in a conservative country. The bus driver can communicate in everyday English but does not get a high enough score on the English test. He may have a better case because he is nearing the age limit for a new residence visa application. His unpredictable work schedule means he cannot enrol in weekend English courses to improve his English, and his work does not require a high level of written English. Additionally, his children, while not yet New Zealand residents, have stronger attachments to New Zealand than to their country of citizenship.

• No Alternative Pathway to Residence

Your chance of a successful appeal may decrease if the IPT determines you have another way to qualify for residence.

Example: A worker with limited English, "A," worked in New Zealand for over ten years and would have qualified for the RV-2021 one-off residence visa if she was in New Zealand on September 30, 2021. Unfortunately, she had to leave New Zealand in August 2021 to care for her unwell mother. Her case is worth presenting to the IPT because her departure was due to unexpected circumstances beyond her control. Furthermore, her limited English means the RV-2021 visa is her only pathway to residence.

• Settlement and Contributions to New Zealand

The IPT considers the time you and your family have spent in New Zealand. The longer you have settled, contributed, and established connections, the more positively the IPT will view your appeal.

Contributions are not limited to professional work. Your familial contributions to New Zealand resident or citizen family members are also very relevant. Additionally, your role as a volunteer or member of a social or charitable organization may also be considered.

• Best Interests of Children

The IPT is obligated to consider the best interests of any New Zealand citizen or resident child. It's important to present how a denial of residence would affect any children in your family.

• Character and Health

You must demonstrate that granting you residence would not be contrary to the public interest. This means you should have good character and health. However, having health issues does not automatically mean your appeal will fail. Appeals have been successful when an individual can provide a specialist medical opinion that their health issues are well-controlled through medication.

• Some Successful Residence Appeals

Here are a few examples of cases where appeals were successful.

TU (Rwanda) [2025] NZIPT 207301 The appellant, Ms. TU, is a 28-year-old mother whose residence application (partnership category) was declined because her relationship with her New Zealand citizen partner ended. However, before the relationship ended, Ms. TU had a five-year-old New Zealand citizen son with her former partner. Ms. TU has been her son's primary caregiver throughout his life. Despite their separation, the co-parenting agreement has allowed the son to maintain contact with both parents.

Ms. TU also has a 10-year-old daughter from a previous relationship. Ms. TU included her daughter in her application. Since arriving in New Zealand, her daughter has been attending school, has become settled in her school environment, and has become a "big sister" to Ms. TU’s New Zealand citizen son. The Tribunal determined that the best interest of Ms. TU's New Zealand citizen son is served by having his mother and his half-sister remain in New Zealand. Ms. TU and her daughter were granted resident visas.

QO (Fiji) [2025] NZIPT 207074 This case involves Mr. QO, a 63-year-old father of a New Zealand citizen daughter whose residence application (parent category) was declined. This was because the combined income of Mr. QO’s daughter and son-in-law did not meet the income requirements. In 2023, Mr. QO’s son-in-law was diagnosed with an unexpected illness that left him unable to work. Mr. QO also included his wife in his application.

Due to his son-in-law's illness, Mr. QO and his wife played a substantial role in his care. Mr. QO also cared for his grandson on behalf of his daughter, who became the family's primary earner as her husband was unable to work. The grandson has become very attached to Mr. QO and considers him another parental figure.

The IPT found that the grandson’s best interest is served by Mr. QO’s presence in New Zealand and that the emotional support Mr. QO provides to his daughter is beneficial to her well-being. Mr. QO and his wife were granted residence.

FN (Philippines) [2024] NZIPT 206948 In this appeal, Mr. FN was a 54-year-old farmer. His residence application (RV 2021) was declined because an INZ medical assessor found it was likely he would require dialysis within the next five years. Mr. FN’s wife and their three children were included in the application. Mr. FN’s wife has strong familial ties to New Zealand; her parents, an aunt, three siblings, and their families are all New Zealand residents and/or citizens.

The Tribunal noted Mr. FN’s approximately ten years of contributions to the New Zealand dairy industry, his wife's strong family ties to New Zealand, and the fact that the couple’s three children grew up and were educated in New Zealand during their formative years. Two of their children performed very well academically. While Mr. FN’s health was a strong negative factor, it was outweighed by the cumulative circumstances of Mr. FN and his family, especially his children, whose impressive academic achievements indicated their potential to make significant contributions to New Zealand. Mr. FN, his wife, and the couple’s three children were granted residence by the Minister.

BP (Myanmar) [2025] NZIPT 207143 This case involves Mr BP, a 57-year-old Buddhist monk from Myanmar whose application for a residence visa (religious worker category) was declined because he was over 55 and did not meet the English language requirements. Mr BP has been a highly respected religious leader of the Burmese community and performs his religious duties predominantly in Burmese. Mr. BP’s seven and a half years of contributions resulted in the Burmese community being able to establish a Burmese temple in their city. After the temple's establishment, Mr. BP has continued to serve as a spiritual anchor for the Burmese community, who look to him for spiritual leadership and guidance.

Having considered Mr. BP’s meritorious contributions that benefit the New Zealand Burmese community, the IPT allowed the appeal. Mr. BP was granted a residence visa.

• Important Considerations for Residence Appeals

When preparing for a residence appeal to the Immigration and Protection Tribunal (IPT), there are several key points to remember.

Timeframe

You must file your appeal with the IPT within 42 days of the date your application was declined. This is a strict deadline and appeals submitted late will not be accepted. Therefore, you should seek professional advice as soon as your application is declined.

Evidence

A residence appeal is primarily based on legal arguments. To present a compelling case, you must gather the strongest possible evidence to support your circumstances. A convincing appeal combines a well-researched submission, supported by legal principles, precedents, and robust evidence. If we ask you to provide medical, financial, or other evidence, please make every effort to obtain it.

Minister of Immigration's Final Decision

Although not frequent, some successful appellants have not been granted a resident visa. This is because the IPT’s authority is limited to recommending that the appellant’s special circumstances warrant consideration by the Minister of Immigration to grant residence. The Minister of Immigration has the final say and, on occasion, has decided not to grant residence despite the IPT’s recommendation.

For example, in FP (South Africa) [2024] NZIPT 206976, the Minister declined to grant residence to Mrs. FP, a high school teacher from South Africa. Her application included her husband and three children. Mrs. FP was highly valued by her students and the community; however, her second child has epilepsy. It's important to note that at the time of her appeal, none of her family members were New Zealand residents. In contrast, in a similar but successful case involving Mr. FN (see above), his wife’s mother, aunt, and three siblings were already New Zealand residents. Consequently, Mr. FN’s ties to New Zealand were considered stronger than Mrs FP’s at the time of his appeal.

Considering cases like these, it may be a more practical strategy to not include family members with character or health issues in your initial residence application if they can apply separately in the future. Instead, you can simply declare them as family members without including them in the application. This approach would allow you, your partner, and your other children to have your residence approved first. Your family’s resident status can then strengthen the "familial ties to New Zealand" assessment for other family members when they apply for residence or file their own appeals in the future.

• Consultation

If you are considering a residence appeal to the IPT or if you want to determine if an appeal is a practical strategy after your application has been declined, please contact Mathews and Associates for an initial, no-obligation, and confidential consultation.

Disclaimer:

The contents of this article are for general information only and does not constitute legal advice and should not be substituted for professional legal advice obtained from your lawyer. If you would like legal advice, please contact Mathews & Associates to discuss your legal matter.

About the Author:

Charn Tiebtienrat MMus, LLB (Canterbury)

Charn brings a unique blend of legal expertise and entrepreneurial experience to Mathews and Associates Lawyers Limited.

After immigrating to New Zealand in 1995, Charn earned his Bachelor of Laws (LLB) from the University of Canterbury. He was immersed in business from a young age, growing up in a family of successful Whangārei entrepreneurs who owned and operated the highly-regarded Suk Jai Thai Restaurant until late 2022. This experience gave him an invaluable, practical understanding of commercial contracts, commercial leases, employment agreements, and visa applications long before attending law school.

Charn has developed a strong specialization in Immigration Law, training under top practitioners, including two years with prominent Wellington immigration and refugee lawyer Kamil Lakshman. Under her supervision, Charn did high-level immigration work, including successful residence and humanitarian appeals to the Immigration & Protection Tribunal, requests for Ministerial Interventions, and securing the cancellation or suspension of deportation liability for his clients. Charn is known for his thorough approach, carefully assessing a client's history and circumstances to devise the most suitable immigration strategy. He finds Immigration Law a uniquely fulfilling area, as every successful decision means helping his clients and their families settle or reunite in New Zealand.

Joining the firm in July 2025, Charn's business acumen enables him to provide detailed and commercially-aware advice to clients. He continues to practice Immigration Law under the supervision of Director Christopher Perry, and has already achieved successful outcomes for a number of clients.