- The appellant, an Indian citizen, appealed against INZ's decision to decline his residence application under the Family (Partnership) category.
- INZ's decline was based on the appellant's non-inclusion in his wife's earlier EOI under the Family (Parent) category.
- The IPT agreed with INZ's decision but recognized special circumstances due to the appellant's strong family connections in New Zealand and the misunderstanding during the EOI process.
- The IPT recommended ministerial intervention for granting residence, considering these special circumstances.
Background
The appellant, a 58-year-old citizen of India, has been married to his wife for 40 years. They have two adult sons, both residing in New Zealand - one a citizen (since 2006) and the other a resident (since 2014). The appellant has visited New Zealand approximately seven times on visitor visas, with his last arrival being in November 2019 on a parent and grandparent multiple entry visa. He was convicted of drink-driving in New Zealand in February 2011, resulting in a fine and disqualification from driving for six months.
Prior to Appeal
In 2014, the appellant's wife applied for residence under the Family (Parent) category, without legal representation. The appellant was not included in this application due to a misunderstanding regarding his eligibility, related to his drink-driving conviction. His family believed he could not be included but could apply for residence after five years from his conviction. Consequently, he was not included in his wife’s application, and she was granted residence. In July 2016, the appellant applied for residence under the Family (Partnership) category, which was declined because he had not been included in his wife's earlier EOI.
Immigration New Zealand Assessment
In assessing the appellant's latest application for residence under the Family (Partnership) category, Immigration New Zealand (INZ) noted the appellant's non-inclusion in his wife's successful EOI under the Family (Parent) category, citing instruction F2.40.5. INZ declined the application, stating that it lacked the discretion to make any exceptions to the immigration instructions.
Immigration New Zealand Decision
INZ's decision to decline the appellant's application was grounded in the principle that as the appellant was eligible but not included in his wife’s earlier EOI under the Family (Parent) category, he could not subsequently be granted residence under the Family (Partnership) category, in accordance with instruction F2.40.5.
IPT Assessment
The IPT found that INZ's decision was correct.
However, it identified special circumstances based on the appellant's strong family nexus to New Zealand, comprising his resident wife, citizen son, resident son, daughters-in-law, and five New Zealand-citizen grandchildren.
The Tribunal considered the appellant's personal and family circumstances, including their integral role in the family household, the support provided to their sons and grandchildren, and the potential adverse effects of separation.
Additionally, it noted the procedural fairness issue due to the family's misunderstanding of residence instructions and lack of legal representation during the wife’s EOI application.
IPT Determination
The IPT recommended to the Minister of Immigration that the appellant's special circumstances warrant consideration for a residence class visa as an exception to residence instructions under section 188(1)(f) of the Immigration Act 2009. It confirmed the correctness of INZ’s decision but recommended ministerial intervention due to the special circumstances.