BZC

[2019] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BZC [2019] NSWCATGD 14

Hearing dates:

09 August 2019

Date of orders:

09 August 2019

Decision date:

09 August 2019

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)
Dr L Tong AM, Senior Member (Professional)
A D Wannan, General Member (Community)

Decision:

1. A guardianship order is made for BZC.

 

2. CZC is appointed as the guardian.

 

3. This is a continuing guardianship order for a period of six months from 9 August 2019.

 

4. This is a limited guardianship order giving the guardian(s) custody of BZC to the extent necessary to carry out the functions below.

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Travel

 

To make decisions about whether or not BZC can or should travel to any place outside Australia, to make travel arrangements on his behalf and liaise with the Department of Home Affairs and other Australian government authorities in relation his immigration status and travel arrangements.

 

b) Passport

 

To make a decision about whether or not the passport of BZC should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

 

c) Other Function

 

To make 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.

 

CONDITION:

 

6. The condition of this order is:

 

a) Standard Condition

 In exercising this role the guardian shall take all reasonable steps to bring BZC to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether an guardianship order needs to be made – what order should be made – where subject person requires assistance with decision-making in relation to international travel, passport, and visa arrangements – where proposed guardian lives overseas – importance of preserving the family relationships and the cultural and linguistic environments – private guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW) ss 4, 14(2), 15(3), 17, 21B

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW)), Windeyer J, 29 November 1999, unrep
IF v IG [2004] NSWADTAP 3
Re B [2011] NSWSC 1075

Texts Cited:

Nil

Category:

Principal judgment

Parties:

BZC (the person)
SZW (applicant)
CZC (carer)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2019/00209070

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

1. BZC is a 31-year-old national of Nepal. BZC was admitted to the Mental Health Inpatient Unit (“MHIPU”), at a NSW hospital (“the Hospital”), on 28 May 2019. He is currently an inpatient at the Unit, undergoing treatment for schizophrenia. BZC is supported by his father, CZC, who is currently in Nepal.

2. BZC arrived in Australia on a student visa in order to undertake postgraduate studies in an MBA program at an Australian university (“the University”). He is no longer enrolled in any course of study and his student visa expired last year. However, BZC believes that he is still a student at the University and holds a valid student visa. It is reported that, prior to his admission, he had continued to attend classes and attempted to complete exams.

3. In May 2018, BZC was issued with a bridging visa E (“BE”) by the Department of Home Affairs (“DHA”), which expired a month later. In June 2019, following his hospital admission, he was granted a further BE to allow him to remain in Australia lawfully whilst receiving treatment and until arrangements have been made for his departure, either voluntarily or by forced removal. BZC has reportedly refused to acknowledge his present circumstances.

4. On 5 July 2019, the Tribunal received an application for guardianship for BZC from SZW, Social Worker at the MHIPU. On the same day, the Tribunal ordered BZC to be separately represented. LZW was subsequently appointed as BZC’s separate representative.

Evidence

5. In a letter to the Tribunal in support of her application, SZW stated that the University contacted the Mental Health Line earlier this year, expressing concern in relation to BZC. The local community health centre attended BZC’s home and found him ‘very unwell’. He was admitted to the Hospital with a relapse of schizophrenia, which was first diagnosed a number of years ago when he was studying in the United States. BZC was again prescribed antipsychotic medication at hospital, which has resulted in ‘slight improvement’. However, BZC’s delusion that he continued to be a student at the University remains strong. This delusion ‘strongly affects his decision-making capacity with regard to his visa situation’.

6. SZW stated that BZC has not held a valid student visa since 15 March 2018 and the University has confirmed that BZC is no longer an enrolled student at the university. Nevertheless, he has been seen attending classes and taking exams. BZC has consistently maintained that he is a student and his visa-related issues are being resolved regardless of the information that is presented to him. SZW noted that in July 2019, BZC was visited in hospital by representatives from the DHA and the University, each seeking to explain to him his relevant status. The DHA clearly communicated to BZC that he must leave Australia as soon as he is medically able to do so and that he would not be able to apply for another visa onshore. BZC has been presented with two options: if he decides to leave Australia voluntarily, the DHA will work with another organisation to arrange a medical escort and they will pay for his return flight home. If he does not return voluntarily, he will be detained and removed from Australia, which will make it difficult, if not impossible, for him to successfully apply for another Australian visa. This may also adversely impact his visa applications to other countries.

7. Dr G, Senior Staff Specialist Psychiatrist, completed a Health Professional Report Form in relation to BZC. She stated in the form that BZC has a severe mental illness, being schizophrenia, and that he had scored 23/30 in two separate Montreal Cognitive Assesments (“MoCA”) administered in May and July 2019. She noted that BZC is on a bridging visa and has been advised that he ‘must leave Australia either voluntarily or by being detained and removed’. BZC, however, remains adamant that he is not required to make this decision due to his persistent delusions of being a student at the University, despite being advised that he is no longer enrolled. The hospital is ‘hopeful’ that BZC can continue to stay as an inpatient until his departure for Nepal, where his illness can be managed in the supportive environment of his family home.

8. In his Occupational Therapy Report, Mr E referred to BZC’s MoCA results, noting that the results are indicative of ‘significant cognitive deficits’. Mr E stated:

[BZC]’s cognitive and functional capacity is substantially impaired, with maintaining even a basic routine and self-care proving unimaginable for him without support whilst on the ward. His cognitive capacity appears significantly impaired based on the standardised assessment and observations whilst on the ward, with most ADL and IADL tasks proving difficult for him to self-initiate or complete.

9. In an email to the Tribunal, BZC’s father, CZC, stated that his son is not able to comprehend the situation at present. Due to the relapse of his schizophrenia, he is not able to think independently. He has a strong delusion that he is still a student of the University even though he has not been enrolled for 18 months. His son requires a guardian to make decisions in relation to his future. CZC stated that his previous attempts to take his son back to Nepal have been unsuccessful.

The Hearing

10. 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

11. 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?

12. 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.

13. 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?

14. 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

2. The importance of preserving the person’s existing family relationships;

3. The importance of preserving the person’s particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

15. 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).

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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?

22. 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.

23. 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.

24. 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]).

25. 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.

26. 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?

27. 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.

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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

Decision last updated: 30 October 2019