JZD

[2019] NSWCATGD 15

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

JZD [2019] NSWCATGD 15

Hearing dates:

17 May 2019

Date of orders:

17 May 2019

Decision date:

17 May 2019

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)
Dr C M West, Senior Member (Professional)
M McCalman, General Member (Community)

Decision:

1. A guardianship order is made for JZD.

 

2. The Public Guardian is appointed as the guardian.

 

3. This is a continuing guardianship order for a period of 12 months from 17 May 2019.

 

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

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Accommodation

 

To decide where JZD may reside.

 

b) Health care

 

To decide what health care JZD may receive.

 

c) Medical/Dental consent

 

To make substitute decisions about proposed minor or major medical or dental treatment, where JZD is not capable of giving a valid consent.

 

d) Services

 

To make decisions about services to be provided to JZD.

 

e) Legal services

 

To make decisions for JZD in relation to access to legal services.

 

f) Travel

 

To make decisions in relation to JZD travel to any place outside Australia.

 

g) Passport

 

To make decisions about passport matters related to travel.

 

h) Other Function

 

VISA STATUS To make all necessary decisions in relation to visa related matters which would ordinarily be made by JZD including giving and receiving information, making applications and giving consent to visa related applications.

 

CONDITION:

 

6. The condition of this order is:

 

a) Standard Condition

 In exercising this role the guardian shall take all reasonable steps to bring JZD 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 the subject person has a disability which prevents them from being able to make important life decisions – whether a guardianship order should be made and what order should be made – where subject person suffers from schizophrenia and polysubstance abuse – where subject person’s visa cancelled on character grounds – where subject person is at risk of being removed from Australia – where subject person requires assistance with decision-making in relation to international travel, passport, and visa arrangements – private guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), 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:

JZD (the person)
ACT Public Trustee and Guardian (applicant)
BZD (carer, mother)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2019/00135584

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. JZD is 31 years old. He is a citizen of Zimbabwe. JZD arrived in Australia in 2005 as a dependent of his mother, BZD, and was subsequently granted permanent residency.

2. JZD was convicted of charges relating to burglary in the Australian Capital Territory (“ACT”) and received a prison sentence. The Tribunal understands that JZD’s permanent visa was subsequently cancelled on character grounds. Following his release from a forensic unit in the ACT, JZD was transferred to the Villawood Immigration Detention Centre (“Villawood”), where he is currently detained.

3. It is reported that JZD has a diagnosis of schizophrenia and polysubstance abuse.

4. On 6 June 2017, the ACT Civil and Administrative Tribunal (“ACAT”) appointed the ACT Public Trustee and Guardian as guardian for JZD. ACAT also appointed the Public Trustee and Guardian as manager of JZD’s estate. Both appointments were scheduled to be reviewed on 5 June 2020.

5. On 1 May 2019, an application for guardianship was received from the ACT Public Guardian, UZN, requesting a guardian be appointed in NSW to make decisions on JZD’s behalf regarding visa related matters as JZD is on the pathway to being removed from Australia.

Jurisdiction

6. The Tribunal can recognise appointments of guardians made by other courts or tribunals under corresponding law in another Australian state or territory. However, if the subject person has moved to NSW, an application to the Tribunal for guardianship orders would be appropriate.

7. On the evidence, the Tribunal was satisfied that JZD has moved to NSW and it should proceed to consider the guardianship application. The Tribunal finds that it has jurisdiction to consider the application for a guardianship in relation to JZD.

The Hearing

8. The hearing was held on 17 May 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

9. The questions which had to be decided by the Tribunal were:

1. Is JZD 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 JZD 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?

10. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is ‘a person in need of a guardian’. A person in need of a guardian is ‘a person who because of a disability is totally or partially incapable of managing his or her person’: s 3(1) of the Act). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act).

11. In a letter prepared in relation to JZD’s access to the National Disability Insurance Scheme, Dr X, Psychiatrist, stated that JZD has a severe and permanent mental illness and has been diagnosed with schizophrenia and polysubstance abuse. The letter attached a report (Evidence of Disability), stating that JZD’s ‘impairment’ has permanently and substantially reduced his capacity to function, perform various daily activities and manage his physical and mental health care needs, as well as ‘setting and achieving personal goals and direction in life’.

12. At the hearing, JZD acknowledged that he has a mental illness, which has impacted on his ability to make decisions. He told the Tribunal that mental illness ‘runs’ in his family and his illness has impacted him in a ‘negative way’. He has memory loss and he cannot remember or keep medical appointments.

13. The Tribunal was satisfied on the evidence before it that JZD’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. The Tribunal was satisfied that a guardianship order could be made for JZD.

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 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. JZD’s separate representative, UZO, submitted at the hearing that JZD has been adversely impacted by his mental illness, namely schizophrenia and auditory hallucinations. He is currently under treatment and seeing a psychologist. UZO noted that JZD’s permanent visa was cancelled on character grounds in November 2018 whilst he was serving his sentence. For reasons that are not entirely clear, information in relation to his review rights were not included in the communication from the Department of Home Affairs (“DHA”) notifying JZD of the decision to cancel his visa. JZD did not seek a review of the decision and was subsequently transferred to Villawood. He is now at risk of being removed from Australia. UZO submitted that it was in JZD’s best interests for a guardian to be appointed to make decisions on his behalf. JZD’s is unable to give informed consent to medical treatment or to make informed decisions in relation to his health care and the services he may require. He is unable to manage his medical appointments and medication intake. In addition, JZD does not have the ability to make decisions in relation to visa related matters or to provide instruction to a third party to act on his behalf.

17. The Tribunal agreed with UZO’s submissions. The Tribunal was satisfied that it was appropriate to make a guardianship order. The Tribunal formed the view that it was appropriate for a guardian to have the functions of health care, medical and dental consent and services.

18. The Tribunal also formed the view that JZD does not have the capacity to make decisions in relation to any action that may be required to assist in the resolution of his immigration status in Australia or to exercise any rights he might have in seeking a review of the decision to cancel his visa. By extension, he does not have the ability to provide legal instruction in relation to these matters or to challenge any decision in relation to his possible removal from Australia. BZD told the Tribunal that an immigration lawyer had been engaged to assist her son with these matters. Unfortunately, she was unable to provide any other information to clarify the extent of the immigration lawyer’s involvement and what actions have been taken so far to assist JZD.

19. The Tribunal was persuaded by the evidence before it that, due to his disability, JZD does not have the capacity to make the various types of decisions that are involved in engaging legal representation, understanding legal issues relating to his visa status or managing related proceedings, which could have serious implications. The Tribunal was satisfied that a guardian with a legal services function would be able to seek advice from or instruct a migration lawyer or agent on behalf of JZD about a range of issues. The Tribunal was also satisfied that JZD would require a guardian to make decisions on his behalf in relation to whether or not he can travel to any place outside Australia and 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. In addition, the Tribunal considered it appropriate to confer upon the guardian the function of making all necessary decisions in relation to visa related matters which would ordinarily be made by JZD including giving and receiving information, making applications and giving consent to visa related undertakings. 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.

20. Finally, persons in immigration detention may be able to pursue options to be granted a bridging visa enabling them to stay lawfully in Australia while making arrangements to leave, finalise their immigration matter or wait for an immigration decision. Should JZD successfully pursue this option and be released from immigration detention, there are decisions that are required to be made in relation to his accommodation. The Tribunal, therefore, considered it appropriate to also confer upon the guardian the function of accommodation.

Who should be the guardian?

21. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

22. 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]).

23. 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) of the Act.

24. UZO proposed the appointment of the Public Guardian as JZD’s guardian. JZD also expressed the view that he preferred the public guardian to be appointed as his guardian. BZD and UZN agreed with this view. BZD noted in her evidence that she is in possession of correspondence from the DHA in relation to the cancellation of JZD’s visa and she agreed to provide the correspondence and other related documents to the Public Guardian.

25. Having regard to the evidence before it, the Tribunal was satisfied that, in the absence of any suitable private guardians, it was appropriate to appoint the Public Guardian as JZD’s guardian.

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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: 31 October 2019