LHM [2022] QCAT 90

Date: 16 March 2022
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Casey
Human Rights Act 2019 (Qld) Sections: ss 13, 19, 24, 25, 48
Rights Considered: Freedom of Movement, Property Rights, Privacy and Reputation
Other Legislation: Guardianship and Administration Act 2000 (Qld) ss 5, 11, 12, 14, 15, sch 4, Powers of Attorney Act 1998 (Qld) s 62
Keywords: Health, Mental Health and Guardianship

This case arose under an application for the Public Guardian and the Public Trustee of Queensland to be appointed as Guardian and Administrator respectively for the adult. The Tribunal noted in its reasoning that the case was subject to the Human Rights Act 2019 (Qld), and that appointment of guardians and administrators impose limitations on human rights.

LHM is an Afghanistan national that was granted a subclass 449 visa (Temporary Humanitarian stay in Australia). LHM has been hospitalized since their arrival in Australia.

The case arose under an application by ARJ, a social worker, seeking the appointment of the Public Guardian and Public Trustee. In a further application, ARJ sought an interim order for the same purpose. The Tribunal appointed the Public Trustee as administrator for three months and dismissed the application for guardianship appointment: at [3]. The Tribunal heard the applications together.

LHM was evacuated from Kabul in mid-2021. LHM was observed to be psychotic in a military refugee camp in Dubai. Upon arriving in Australia, he was assessed as experiencing psychosis with disorganised and sexually disinhibited behaviour: at [17]. LHM was placed in an acute mental health unit and his psychotic episode was assessed as resolving in late 2021. LHM was also diagnosed with schizophrenia, and as having a cognitive impairment: at [18].

There is an absence of an appointment of a formal decision maker, and the Department of Home Affairs and Multicultural Australia are both unable to offer accommodation and support LHM’s needs, nor do they have decision-making powers for persons with impaired capacity: at [30]. The Tribunal noted strongly that LHM is in a highly vulnerable situation due to his cognitive impairment, mental health and social isolation, against a background of cultural and linguistic barriers: at [31]. The Tribunal was satisfied that without the appointment of the Public Guardian, LHM’s needs will not be met nor his interests provided.

LHM does not receive income, however upon his biodata being confirmed by the Department of Home Affairs, LHM will be eligible for income support via Centrelink. The Tribunal found that there is need for the appointment of an administrator, as his financial needs nor financial interests will not be protected: at [41]. The Tribunal appointed the Public Trustee as administrator: at [42].

The Tribunal noted that section 48 of the Human Rights Act 2019 (Qld) required it to interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights: at [43]. The Tribunal in particular noted LHM’s right to privacy, freedom of movement and property: at [43]. Ultimately, the Tribunal felt their decision to appoint an administrator and public guardian was balanced by the opportunity for LHM to be discharged into the community with appropriate support: at [43]. Therefore, the limits imposed are reasonable and demonstrably justified in accordance with section 13 of the HRA: at [43].

Visit the judgment: LHM [2022] QCAT 90