BZC [2019] NSWCATGD 14

The Hearing

1. The hearing was held on 9 August 2019. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]

The Guardianship Application

1. The questions which had to be decided by the Tribunal were: 1. Is BZC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is BZC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

1. We were satisfied on the evidence before us that BZC has a diagnosis of schizophrenia and cognitive impairment. BZC's evidence at the hearing was consistent with the information outlined in the reports provided by SZW, demonstrating persistent delusions. BZC was adamant that he continued to be enrolled as a student at the University and that he is able to remain in Australia lawfully to pursue his studies.
2. We were satisfied that BZC's disability results in him being restricted in one or more major life activities to such an extent that he requires supervision and assistance, and is thereby incapable of managing his own person. We were satisfied that a guardianship order could be made for BZC.

Should the Tribunal make a guardianship order and what order should be made?

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act 1987 (NSW) ("the Act") before exercising its discretion to make a guardianship order: 1. The views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. The importance of preserving the person's existing family relationships; 2. The importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. At the hearing, BZC told us that he did not require a guardian, insisting that he continues to be an enrolled student and capable of making all necessary decisions.
4. SZW gave evidence that BZC is currently an involuntary patient at MHIPU and under a Community Treatment Order. BZC is likely to remain at the MHIPU until his departure from Australia. SZW reiterated that BZC continues to exhibit fixed and strong delusions that he is still an enrolled student. These delusions are preventing BZC from departing Australia voluntarily. If BZC were to depart voluntarily, DHA will put in place appropriate arrangements for BZC to be medically escorted by representative from the International Organisation for Migration. Should he not depart Australia voluntarily, the DHA have advised that he will likely be detained and forcibly removed. Forcible removal will have a serious adverse impact on BZC's ability to successfully obtain another visa to return to Australia to complete his studies. It may also impact on his ability to travel to other countries.
5. BZC's father told us that he has not been able to persuade his son to return to Nepal due to his strong delusions. CZC said that he would like to be appointed as his son's guardian to make decisions on his behalf in relation to his departure from Australia.
6. LZW submitted that BZC does not wish to meaningfully engage in relation to his education and visa-related issues. He does not seek and is 'dismissive' of objective evidence. He has limited capacity to engage in critical issues or to ask questions and he is generally 'guarded' against third parties. LZW stated that BZC requires a guardian to give consent to his departure from Australia voluntarily.
7. We accepted the evidence before us and agreed with LZW's submission. Having carefully considered the matters in s 14(2) of the Act and guided by the principles set out in s 4 of that Act, we were satisfied that it was appropriate to make a guardianship order for BZC. The evidence before us did not support the conclusion that, at present, there are decisions that need to be made in relation to BZC's accommodation, health care, medical and dental treatment.
8. We formed the view, however, that BZC would require a guardian to make decisions about whether or not he can or he should travel to any place outside Australia, to make travel arrangements on his behalf and liaise with the DHA and other Australian government authorities in relation his immigration status and travel arrangements. We were satisfied that the appointed guardian should also make decisions on behalf of BZC as to whether or not his passport should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel. We also considered it appropriate to confer upon the guardian the function of making all necessary decisions in relation to visa related matters that would ordinarily be made by BZC, including giving, requesting or receiving information, and making representations on his behalf. Section 21B of the Act provides further practical support to enforcement of the guardian's decisions or actions, allowing a guardian to sign relevant legal documents.

Who should be the guardian?

1. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: s 15(3), the Act.
2. Section 17 of the Act expressly prohibits the Tribunal from appointing a person as guardian unless it is satisfied that the person has a personality generally compatible with the personality of the person under guardianship, has no undue conflict of interest in respect of the person under guardianship; and that he or she is willing and able to exercise the functions of the order.
3. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW)), Windeyer J, 29 November 1999, unrep, and Re B [2011] NSWSC 1075, [66]).
4. In her application, SZW nominated CZC to be appointed as his son's guardian. We were initially mindful that CZC is currently in Nepal and questioned whether, in practice, he would be able to make the decisions specified by the Tribunal's order. We were, however, persuaded by the evidence given to us that CZC has been a strong advocate for his son, having previously travelled to Australia on multiple occasions to provide support and assistance. He has been in regular communication with the MHIPU and the DHA and has clear insight into his son's needs and predicament. BZC told us that he wished his father to be appointed as his guardian if an order was made and we also took into consideration LZW's submission that BZC is generally guarded in relation to third parties.
5. In view of our duty to observe the principles s 4 of the Act, including the importance of preserving the family relationships and the cultural and linguistic environments of the person, we decided to appoint CZC as guardian. There was nothing apparent on the face of the evidence to suggest that he has any undue conflict of interest with BZC. On the basis of this evidence, we were satisfied that CZC meets the requirements to be appointed as guardian for his son.

How long should the order last?

1. Initial guardianship orders are usually made for a maximum of one year from the date on which they were made. We decided to make an order for six months to ensure that the appointed guardian would be able to undertake important decisions on BZC's behalf with regard to the functions specified in the Tribunal's order.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2019