Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AQN v Office of Public Guardian [2013] NSWADT 172 Hearing dates: 10 July 2013 Decision date: 10 July 2013 Jurisdiction: General Division Before: Judge K P O'Connor, President Decision: Application dismissed Catchwords: GUARDIANSHIP - Application for Review of Public Guardian's Relocation Decision - Death of Person under Guardianship - Application Withdrawn Legislation Cited: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Category: Principal judgment Parties: AQN (Applicant) Office of Public Guardian (Respondent) Representation: In person (Applicant) M Dalla-Pozza, Crown Solicitor's Office (Respondent) File Number(s): 133109 reasons for decision 1It is not the usual practice of the Tribunal to give any reasons for an order of dismissal entered in circumstances where the application for review has been withdrawn. 2On this occasion, I have agreed to publish a short set of reasons, so as to explain the circumstances under which the withdrawal has occurred, and as a way of providing the review applicant with a record that provides reassurance that her action in withdrawing the proceedings is not to be taken as any indication of support or acceptance by her or the Tribunal of the decision which she sought to have reviewed. 3AQN filed her review application (made under s 80A of the Guardianship Act 1987) on 12 April 2013. She is an Australian-based daughter of the person under guardianship whose circumstances were the subject of the review application, Mr F, then 82 years old and in care in Sydney, with a severe brain injury and surviving with the aid of a nutritional supplement and hydration. There has been dispute between the relatives of Mr F over whether he should remain in Australia or be returned to Timor-Leste, and die there. The Public Guardian decided on 21 February 2013 (confirmed on internal review, 15 March 2013) that it was in his best interests that he be returned to Timor-Leste. AQN's review application challenged that decision. 4The Public Guardian's summary of reasons stated: Mr F only returned to Australia to receive life saving treatment as a result of an accident in July 2011. His condition will not improve through accessing further medical treatment. It is culturally important for East Timorese to die in their homeland. Mr F's actions as a participant in the guerrilla movement against the Indonesian occupation of East Timor, and through returning to East Timor after independence, indicate he was prepared to live the remainder of his life in his home country. In the event Mr F can receive adequate health care it is in his welfare and interests to return to Baucau. 5The Tribunal had made arrangements to have a full hearing of the matter today, 10 July 2013. The Tribunal intended to hear witnesses orally in its hearing room in Sydney and also link up by telephone with witnesses located in Timor-Leste (various family members and the doctor intended to manage Mr F's care needs there). 6On the morning of Monday 8 July Mr F died in hospital in Sydney. 7The review applicant, AQN, and Mr Dalla-Pozza for the Public Guardian have attended the Tribunal today. 8AQN accepts that in the circumstances it is better not to continue to pursue her objection to the decision. However, she wishes it to be recorded that she remains dissatisfied with the decision, and believes that it was not the correct and preferable decision, given Mr F's condition at the time the decision was first made or when it was internally reviewed. 9This forms the background to the order of dismissal entered on this occasion. 10[I have given these reasons without considering closely a point raised by Mr Dalla-Pozza at the end of today's proceedings. He submitted that the powers of the Public Guardian lapse on the death of the protected person, and accordingly the Tribunal's review jurisdiction lapses. He alluded to s 21 of the Guardianship Act 1987 and s 63(2) of the Administrative Decisions Tribunal Act 1997. I did not seek submissions from the review applicant on the point. It is apparent that had she been inclined to pursue the application she would have wished to argue to the contrary.] Order Application for review dismissed. 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: 31 July 2013