Daniel and Marie are KiwiSaver members who moved to Hong Kong. After a year in their new country Daniel and Marie applied to their KiwiSaver superannuation schemes to withdraw their funds because they had permanently emigrated from New Zealand. Both completed the necessary forms and provided bank statements, passports with visas, a letter from Daniel’s employer confirming permanent employment in Hong Kong and statutory declarations of their intention to leave New Zealand permanently.
Marie’s KiwiSaver trustee released her funds and Daniel’s did not.
Daniel considered he had met the requirements under the KiwiSaver Act 2006 allowing the KiwiSaver trustee to release the funds. The KiwiSaver trustee was not satisfied Daniel had permanently emigrated because he did not have permanent residency. Daniel explained he was unable to apply for permanent residency until he had lived in Hong Kong for seven years.
We considered the trustee may have incorrectly applied the KiwiSaver Act 2006 (“the Act”) and we found that Daniel was entitled to withdraw his funds.
Clause 14(1) of Schedule 1 of the Act allows a KiwiSaver member to withdraw funds if the member has permanently emigrated from New Zealand. Clause 14(3) requires the member to submit an application to the trustee of their KiwiSaver scheme, including:
- a statutory declaration that the member has permanently emigrated from New Zealand and
- proof that the member has departed from New Zealand, which may be travel arrangements, passport evidence and evidence of necessary visas and
- proof the member has lived at an overseas address for some time in the year following the member’s departure from New Zealand.
Daniel had provided:
- a statutory declaration that he had permanently emigrated from New Zealand and
- his passport and air tickets showing he had left New Zealand and
- bank statements as evidence that he had lived at an overseas address during the previous year.
The trustee was concerned Daniel did not have a permanent residency visa and so, in the trustee’s view, did not have the “necessary visas” to permanently emigrate.
We considered the requirement for a member to hold “necessary visas” could mean a visa to live and work overseas, and did not necessarily require a member to have permanent residency overseas. Our interpretation of “necessary visas” was confirmed by the requirement that the member provide proof they had lived at an overseas address during the previous year. This requirement would be redundant if proof of permanent residency was always required.
We asked the trustee to reconsider its decision to decline Daniel’s application. The trustee reconsidered and agreed to release Daniel’s funds.