A Tongan worker who was in a critical condition after a three-tonne girder fell and pinned him to a concrete wall at work has been granted New Zealand residency so he can get the surgery he needs.
He was referred to as ‘BQ’ by the Immigration and Protection Tribunal, and he had only lived in New Zealand for nine months when the accident happened in August 2012.
BQ sustained significant injuries to the right side of his body and nerves which have necessitated at least five orthopaedic procedures to date.
His general practitioner has confirmed that, BQ’s hip replacement had become infected and he had to undergo further surgery. As a result he had been left “remarkably disabled”, the tribunal in Auckland heard.
His orthopaedic surgeon concurred has described BQ’s condition as “significantly incapacitated”.
The orthopaedic surgeon indicated that the decision to undergo another surgery has not been made lightly, because of the associated risks with this type of surgery, increased in his case by his diabetes, prior infection and his greater risk of dislocation and aggravation of his existing nerve injury, the tribunal heard.
By June 2018 the man and his family’s visas had expired and he faced deportation to Tonga.
Tribunal member Annabel Clayton said the tribunal had to consider the impact the accident had on the man’s “poor immigration history”, against the hardship he would face if deported to Tonga.
“The tribunal accepts that the orthopaedic surgery required by the husband can be undertaken only in New Zealand, not in Tonga.”
ACC payment
A weekly ACC payment of $630.24 would continue to be paid to him if he went back to Tonga but no medical treatment there would be funded by ACC.
A panel physician for Immigration New Zealand in Tonga confirmed that further hip surgery was not available in Tonga.
“It is also accepted that, notwithstanding the risks presented by further surgery, the chronic nature of the husband’s injuries and the complexity of his treatment means that returning to Tonga would mean he would have to cope with ongoing and significant levels of pain and disability,” the tribunal was told.
“The Tribunal accepts on this evidence that the cost of any required post-surgery treatment and rehabilitation, even if they were available in Tonga, will not be covered by ACC.”
“It is clearly in the husband’s best interests that he remain here in New Zealand where he can access first the surgery and then the follow-up treatment and long-term rehabilitation facilities available in this country.”
“BQ has been living in New Zealand for seven years and now that he is incapacitated he finds the prospect of a return to Tonga deeply distressing.
Major burden
“He fears that he would be regarded as a major burden by his family members who are themselves struggling to live in overcrowded and challenging conditions.
“He would be unable to provide any physical help in, for instance, the family plantation, as is his familial and cultural expectation.”
BQ and his wife married in 2006 and have two children.
Their eldest daughter is 11 and still lives in Tonga, while their son, 9, has lived in New Zealand since he was 2.
His wife had experienced steadily deteriorating health of her own in the years after her husband’s accident, some of it “due to the stress to which she has been subjected”, the tribunal heard.
Tribunal decision
“The Tribunal found that, cumulatively, the husband’s ongoing medical issues, namely his need for further surgery and ongoing treatment and rehabilitation or his otherwise high levels of disability, pain and consequent dependence, the wife’s health needs and her family nexus to New Zealand, the family’s absence from Tonga for seven years, the best interests of their son (and daughter) and the hardships for the appellants if they have to return to live in Tonga, amount to exceptional humanitarian circumstances.
“For the reasons given, the Tribunal finds that the appellants have exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh for them to be deported from New Zealand.”
