Applicant v Respondent

Supreme Court of Victoria|2011-02-07|Before: EMERTON J

ADMINISTRATIVE LAW - Housing - Application for leave to appeal from VCAT - Tribunal declined to make an order requiring the respondent to enter into a tenancy agreement with the applicant - 'likely to suffer severe hardship' - Where landlord is a statutory authority - Orderly and equitable management of public housing allocation system - Residential Tenancies Act 1997 (Vic) ss 232-3 - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 13(a), 17, , (1).

1 Mr Giotopoulos lives in a public housing flat in Elgin Street, Carlton (the 'Carlton flat'), which he came to occupy in an unorthodox way in mid to late 2008. Although Mr Giotopoulos has now lived in the Carlton flat for some time, he has never enjoyed a tenancy agreement with the Director of Housing. This appeal concerns his application for an order under s 232 of the Residential Tenancies Act 1997 (Vic) (the 'Act') that the Director enter into a tenancy agreement with him to enable him to continue to live in the Carlton flat.

2 On 29 July 2009, the Director applied to the Tribunal for an order for possession of the Carlton flat pursuant to s 344 of the Act. The Tribunal found that Mr Giotopoulos had remained in occupation of the flat without the Director's licence or consent and ordered Mr Giotopoulos to vacate the Carlton flat (the 'possession order'). In order to avoid being evicted, Mr Giotopoulos made the application that is the subject of this appeal. The possession order was stayed pending the determination of Mr Giotopoulos' application for a tenancy order.

3 Section 232 of the Act provides for the Tribunal to order a landlord (in this case, the Director) to enter into a tenancy agreement with a person who has been residing in rented premises as his or her principal place of residence but is not a party to a tenancy agreement where, relevantly, an application for a possession order for the premises has been made under Part 7 of the Act. The Tribunal may make an order requiring the landlord to enter into a tenancy agreement if it is first satisfied of the matters set out in s 233(1). Those matters are that:

(a) the applicant could reasonably be expected to comply with the duties of a tenant under a tenancy agreement to which this Act applies; and

(b) the applicant would be likely to suffer severe hardship if he or she were compelled to leave the premises; and

(c) the hardship suffered by the applicant would be greater than any hardship that the landlord would suffer if the order were made.

4 In substance, the Tribunal decided that while it was satisfied that Mr Giotopoulos could reasonably be expected to comply with the duties of a tenant under a tenancy agreement and would be likely to suffer severe hardship if compelled to leave the Carlton flat, it was not satisfied that the hardship likely to be suffered by him would be greater than the hardship that the Director would suffer if the Director was ordered to enter into a tenancy agreement with Mr Giotopoulos.

5 The Tribunal also stated that even if it had been satisfied of all of the matters in s 233(1) so as to enliven its discretion, it would not have made the order sought by Mr Giotopoulos. In particular, it did not accept the propositions advanced by Mr Giotopoulos about the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the 'Charter') on the exercise of its discretion.

6 Mr Giotopoulos has filed a proposed Notice of Appeal raising eight grounds of appeal. At the hearing of the application, one of the grounds (Ground 4) was not pursued. The remaining grounds of appeal concerned satisfaction of the conditions in s 233(1) (Grounds 1 - 3 and 5), the exercise of the discretion in s 233(1) (Ground 6) and, also in the context of the discretion, the application of the Charter (Grounds 7 and 8). In essence, Mr Giotopoulos contends that the Tribunal erred in evaluating his likely hardship for the purposes of s 233(1)(b), and in evaluating and comparing the hardship that would be suffered by the Director for the purposes of s 233(1)(c). He also contends that the exercise of the Tribunal's discretion to make a tenancy order would have miscarried, had it been enlivened as it ought to have been (Grounds 6, 7 and 8).

7 For the reasons that follow, leave to appeal should be refused. While allowing any error by the Tribunal to go uncorrected would undoubtedly impose substantial injustice on Mr Giotopoulos, the Tribunal's decision is not attended by sufficient doubt to warrant the grant of leave.

8 The Tribunal did not apply the wrong test when assessing hardship, fail to take into account relevant considerations, or make a finding that was irrational or illogical or based on inferences that were not open on the evidence in concluding that the hardship that Mr Giotopoulos would be likely to suffer if a tenancy agreement order were not made would not be greater than the hardship that the Director would suffer if such an order were made. It was open to the Tribunal on the evidence before it to make the findings that appear in its reasons in relation to s 233(1)(b) and (c). The question as to how it should exercise its discretion did therefore not arise.

9 The Tribunal heard extensively from Mr Giotopoulos about his personal circumstances and questioned him directly on a number of matters. It also heard from housing officers as to the position of the Director, including as to the management of public housing waiting lists, Mr Giotopoulos' position and prospects on those lists and as to vacancies in the block of flats in which the Carlton flat is located. Also before the Tribunal were statutory declarations made by Mr Giotopoulos and his wife and former wife, numerous medical reports and a copy of a document "Landlord's Consent to Sub-Letting of Rented Premises" dated 6 and 8 October 2008.

10 Mr Giotopoulos' evidence was that he moved into the Carlton flat in or about October 2008. At the time, the Carlton flat was leased to the elderly parents of a friend of Mr Giotopoulos, Katherine Thomas. Ms Thomas' parents left the flat in August 2008 because Ms Thomas' mother required nursing care, but it was thought possible that she and Mr Thomas might return to the flat in due course. Mr Giotopoulos told the Tribunal that it was envisaged that he would help care for Ms Thomas' parents if and when they returned. At the time, Mr Giotopoulos was a registered nurse.

11 In October 2008, Ms Thomas, as her parents' attorney, sought permission to sub-let the Carlton flat to Mr Giotopoulos. A document entitled "Residential Tenancies Act - Landlord's Consent to Sub-letting of Rented Premises" was signed on behalf of the Director of Housing, Ms Thomas and Mr Giotopoulos on 6 and 8 October 2008. It provides that the landlord (the Director) consents to Mr and Mrs Thomas sub-letting the Carlton flat to Mr Giotopoulos, but does not specify the period for the sub-lease.

12 Mr Giotopoulos gave evidence that prior to moving into the Carlton flat, he paid $8,500 in cash to Ms Thomas, being 52 weeks rent in advance. In addition, somewhat curiously, he paid two lots of $245.70 to the Director[1] on 10 October 2008 by way of rent. In a statutory declaration sworn by Mr Giotopoulos on 2 September 2009, he stated that Ms Thomas had agreed to submit the necessary documentation to enable a rent rebate to be calculated. Ms Thomas submitted the rent rebate application for the first six month period, but failed to submit any further documentation. The first six month period ended in April 2009, when Ms Thomas told Mr Giotopoulos that she had had "a change of heart" and refused to continue to support him.

13 The evidence before the Tribunal was that Mr Giotopoulos' personal circumstances are complex. He has been married twice and is divorced or separated from each of the women in question. He and his first wife divorced in 2003 or 2005,[2] and he has two sons, aged 10 and 16, from that marriage. He remarried in 2006 and had a further son, Adonis, but separated from his second wife in August 2008. Mr Giotopoulos continues to have contact with and responsibilities towards his sons: his former partners have each stated that he is responsible for 21% or 22% of the care of his children.

14 Mr Giotopoulos told the Tribunal that during his first marriage, he and his family lived in a house owned by his then wife in the eastern suburbs. When they were divorced, he moved out of the house, and his former wife and sons continued to live there. When Mr Giotopoulos remarried in 2006, he and his second wife lived with his parents for two years in his parents' three bedroom house in Box Hill. In 2008, he and his second wife moved to an uncle's house, where they remained until October 2008 (the marriage having broken down in August 2008).

15 Mr Giotopoulos was made bankrupt in 2006, but his bankruptcy was discharged in 2009.

16 Mr Giotopoulos gave evidence that he worked as a nurse until August 2008. He suffered a stroke in December 2008. In February 2009, his nursing licence was suspended for physical and mental health reasons. In January 2009, Mr Giotopoulos had surgery for a hole in his heart and, in May 2009, he was diagnosed with atrial fibrillation (irregular heart beat). He also suffers from hypertension, is morbidly obese, has arthritis (particularly in his thumbs), suffers from anxiety attacks and depression and feels chronically tired and fatigued. He is currently on a disability pension.

17 A number of medical reports were provided to the Tribunal which confirmed that Mr Giotopoulos suffers from very serious medical conditions. Some of these reports also emphasised his need for stable housing and stated that any move or the stress associated with attempts to find alternative housing would or could be detrimental to his health.

18 Mr Giotopoulos told the Tribunal that he had not made any enquiries about private rental accommodation and that he had not applied for any financial assistance to enable him to pay a bond for private rental. He had applied to the Director to be placed on the waiting list for supported housing. The application was lodged in early July 2009 and sought placement in a two bedroom apartment in the 'metro-east' area.

19 The Tribunal heard from the Director that Mr Giotopoulos' application for housing in the 'metro-east' area did not cover the Carlton area. In addition, his application did not contain medical or other evidence to support an allocation to the 'urgent' waiting list and was he therefore placed on the 'wait-turn' list. Mr Giotopoulos could transfer to the list for the 'inner metro-north' area, but he would need to submit an application for 'early housing' with relevant supporting documentation to enable him to qualify for more urgent housing. Generally speaking, however, an applicant for early housing needs to demonstrate that they have attempted to secure alternative housing.

20 The Tribunal heard that Mr Giotopoulos was placed at 865 on a waiting list of 906 for the area concerned. If good medical grounds were given, Mr Giotopoulos could be reclassified as having 'special needs' and would be moved to Category 3 on the waiting list, where 272 persons were registered at the time of the Tribunal hearing.

21 Mr Giotopoulos told the Tribunal that if he were evicted from the premises, he would be rendered homeless and forced to live in his car. He said that it was critical that he continue to live in the inner-eastern Melbourne area in order to see his children, and attend medical appointments and family counselling sessions. He said that the thought of moving was extremely stressful to him.

22 The Tribunal accepted that Mr Giotopoulos suffers from a number of significant medical and psychological conditions and that any requirement that he relocate to alternative accommodation would be very difficult and stressful for him.[3] However, the Tribunal did not accept that Mr Giotopoulos would "necessarily" be rendered homeless and forced to live in his car if required to leave the Carlton flat. The Tribunal referred to the fact that he had previously lived with his parents for a number of years and that they continued to be the only occupants of their three bedroom property. The Tribunal did not accept that his parents would refuse him shelter if he had nowhere else to live, at least in the short term.[4]

23 Moreover, the Tribunal did not accept that Mr Giotopoulos had significant ties to the Carlton area and that he would be unable to attend future medical and counselling sessions if he were forced to leave the area. It found that he had greater links to the eastern suburbs, where he was brought up and where his first wife and children live. Although Mr Giotopoulos regularly visited a number of agencies and support services in the Carlton area for meals and other forms of assistance, he had only been living in the area for a year and similar support services and agencies were available in the eastern suburbs and in other areas of Melbourne.[5]

24 The Tribunal concluded that the hardship likely to be suffered by Mr Giotopoulos was "in terms of the stress and potential adverse effects on his health that might be caused by moving house and the difficulty of finding suitable alternative accommodation."[6] However, it stated that it was "not satisfied that he will be rendered homeless if he is forced to leave the Carlton flat" and that it believed it to be "likely that he could move back in with his parents if he were unable to obtain accommodation elsewhere".[7]

25 The Tribunal found that the Director would suffer hardship if a tenancy order were made in favour of Mr Giotopoulos[8] because the effect of such an order would be to prevent the Director from being able to fairly and equitably administer the waiting list for public housing, which is one of its primary functions.[9] The Tribunal found that the creation of a tenancy agreement in this case would have an adverse effect on the Director's waiting list because it would prevent the Director from entering into a tenancy agreement with a person who had qualified for urgent housing who had, in all likelihood, been waiting for a number of years for public housing.[10]

26 Thus, in respect of the conditions in s 233(1) of the Act, the Tribunal found that Mr Giotopoulos could reasonably be expected to comply with the duties of a tenant, and that he would be likely to suffer severe hardship if he was forced to vacate the Carlton flat.[11] Accordingly, conditions (a) and (b) were satisfied. However, the Tribunal was not satisfied of condition (c), that is, that the hardship Mr Giotopoulos would suffer would be more severe than the hardship the Director would suffer if an order under s 232 were made. The Tribunal concluded:

When balancing the respective parties' rights under section 233(1)(c) I am of the view that both parties will suffer hardship but that the hardship suffered by JG would not be greater than any hardship that the DOH would suffer if the order were made.[12]

27 Accordingly, the Tribunal concluded that its discretion to make a tenancy order under s 233(1) of the Act was not enlivened.

28 Mr Giotopoulos' application for leave to appeal can be disposed of on the basis of the Tribunal's consideration of the matters in s 233(1)(a), (b) and (c) alone. However, the Tribunal explained that it would have exercised its discretion against making an order for a tenancy agreement in any event. The Tribunal's reasoning in this respect is set out in the course of my brief consideration of Grounds 6, 7 and 8, which relate to the way in which the Tribunal would have exercised its discretion.

29 Grounds 1 and 2 challenge the Tribunal's evaluation of the hardship that Mr Giotopoulos would be likely to suffer if a tenancy order was not made. Mr Giotopoulos contends that as the manner in which his hardship was evaluated was erroneous, the Tribunal undertook the exercise of comparing hardships for the purposes of s 233(1)(c) on the wrong basis.

30 By Ground 1, Mr Giotopoulos contends that in determining that it was not satisfied of the condition prescribed by s 233(1)(c) of the Act, the Tribunal asked the wrong question.[13] He contends that the Tribunal erroneously considered that s 233(1)(c) required a balance to be struck between the broad interests of the landlord and the tenant and that, by asking whether it was satisfied that each element of the hardship claimed would be suffered by Mr Giotopoulos rather than asking whether each element was likely to be suffered by Mr Giotopoulos, the Tribunal imposed on him an onus higher than that imposed by the Act.

31 By Ground 2, Mr Giotopoulos contends that in determining that the condition prescribed by s 233(1)(c) was not made out, the Tribunal failed to take into account relevant considerations.[14] He contends that in confining itself to considering elements of hardship of which it was positively satisfied, the Tribunal failed to take into account the likelihood of Mr Giotopoulos being rendered homeless and of being deprived of his right to have the care and custody of his children if an order was not made.

32 Before the Tribunal, Mr Giotopoulos submitted that if evicted, he would suffer hardship for three reasons: (1) homelessness; (2) detriment to his health; and (3) loss of contact with his children. He contends that the Tribunal should have made findings in relation to each of the three bases for hardship, and should have considered what was 'likely' to occur in relation to each of those matters. Mr Giotopoulos submits that although the Tribunal recognised the proper test of 'likely' (whether there was 'a real and not remote chance'[15]), when the time came to apply that test, the Tribunal fell into error and applied two different thresholds: 'certainty' at [67][16] and 'satisfaction' at [79][17]. What the Tribunal did instead was to find, in relation to homelessness, that Mr Giotopoulos would not "necessarily" be rendered homeless. In relation to loss of contact with his children, it did not really make any finding at all.

33 Mr Giotopoulos submits that the evidence before the Tribunal did not support findings that he was not likely to be rendered homeless and not likely to lose contact with his children if compelled to leave the Carlton flat.

34 In relation to homelessness, Mr Giotopoulos says that the evidence before the Tribunal was that he stated he had nowhere else to go, and he was not cross-examined about that statement. He was asked whether he could return to his parents' house and his answer was "no". When asked whether there was any reason why he could not live with his parents, Mr Giotopoulos explained that they were elderly, he had outstayed his welcome there and his current condition was too overwhelming for them. His father is 85, argumentative and has borderline dementia. He expresses a lot of anger, and it creates a tremendous amount of stress. His parents asked him to leave when he did, even though he was struggling for about three months to find somewhere to live after that. He concluded, "So there is no more room at my parents' place".[18]

35 According to Mr Giotopoulos, that is the totality of the evidence about the possibility of him living with his parents. He submits that the Tribunal simply assumed that all people whose parents have a spare room will take them in. However, no such inference could be drawn, as there was no evidence from which the Tribunal could have concluded that he would be able to stay with his parents. Furthermore, the reference to Mr Giotopoulos staying with his parents, "at least in the short term", suggested that some other option would become available. Again, there was no basis for this and it was entirely contrary to the evidence. Mr Giotopoulos points to the evidence before the Tribunal about the scarcity of private accommodation and the evidence (including from the Director) about the scarcity of public accommodation.

36 As to his ability to maintain contact with his children, Mr Giotopoulos points to the evidence from his former wife and his estranged wife that he is responsible for the care of his sons 21 or 22 percent of the time. In addition, his statutory declaration stated that he was desperate to hold on to his accommodation, mostly for the purpose of providing a stable environment in which to nurture his three sons, and the clinical director of the Drummond Street Relationship Centre had provided a statement stating that Mr Giotopoulos required stable housing in order to concentrate on resolving his family issues. Mr Giotopoulos says that there was no cross-examination of him about his family arrangements and no questions were put to him by the Tribunal about the care that he had of his children. Notwithstanding this evidence, the Tribunal simply observed that it was "hard to understand how he would be able to look after his children, especially the youngest one, for any period of time at all given his assertion that he is chronically fatigued and has to lie down every couple of hours."[19]

37 As a result, Mr Giotopoulos contends that the Tribunal made no specific finding of fact in relation to hardship arising from loss of contact with his children and that it appears that either the matter was resolved against him or was not taken into consideration when the time came to consider what hardship he was likely to suffer.

38 Counsel for Mr Giotopoulos made much of the fact that the Tribunal referred to Mr Giotopoulos not "necessarily" becoming homeless and expressed itself not to be "satisfied" that he would be rendered homeless. This was said to be an indication that the Tribunal had not directed itself to whether Mr Giotopoulos was likely to become homeless and likely to lose contact with his children as it was bound to do. In argument, counsel for Mr Giotopoulos confirmed that it was his contention that the Tribunal should have stated in its reasons, "I do not accept that it is likely that Mr Giotopoulos would be rendered homeless" and "I do not accept that it is likely that Mr Giotopoulos would lose contact with his children" if compelled to leave the Carlton flat. It was submitted that failure to make findings of this kind in relation to each of the elements of hardship claimed by Mr Giotopoulos indicated that the wrong test was applied in relation to hardship generally, and that the Tribunal erred in taking into account only those matters of which it was "positively satisfied".

39 I do not accept this submission. The question raised by s 233(1)(b) is whether Mr Giotopoulos was likely to suffer severe hardship if a tenancy order was not made. The Director correctly submits that the test of likelihood is directed to hardship, not to each finding of fact that could lead to a finding of hardship. In deciding whether Mr Giotopoulos was likely to suffer severe hardship, the Tribunal was obliged to make findings of fact. It was not obliged to approach the fact finding task by asking whether there was a 'real and not remote chance' of each factor relied upon by Mr Giotopoulos occurring. It was a matter for the Tribunal as to how it evaluated the different elements said to give rise to hardship, especially as they were intertwined to a significant degree.

40 Moreover, having considered the Tribunal's reasons as a whole, it is not the case that the Tribunal took into account only those things of which it was "positively satisfied". The Tribunal was not satisfied at all of a significant part of the hardship case put by Mr Giotopoulos. His contention that unless a tenancy order was made, he would be forced to live in his car, unable to see his medical practitioners and unable to have proper contact with his family did not survive the scrutiny and factual findings of the Tribunal. The Tribunal was entitled to and did reject much of Mr Giotopoulos' evidence, in particular his evidence that he would become homeless if compelled to leave the Carlton flat. In the context of the way in which Mr Giotopoulos put his hardship case, the finding that Mr Giotopoulos would not "necessarily" be rendered homeless constituted a rejection of Mr Giotopoulos' submission that he was doomed to homelessness if evicted from the premises. Similarly, the finding that Mr Giotopoulos was "likely" to go back to his parents was a finding that he was unlikely (or not likely) to become homeless.

41 Although the only evidence before the Tribunal pertaining to Mr Giotopoulos' ability to be housed with his extended family was the evidence of Mr Giotopoulos himself, the Tribunal was told that Mr Giotopoulos had lived with family members over extensive periods in the past, and that his parents could physically accommodate him in their home. It was clear from his own testimony that Mr Giotopoulos had enjoyed considerable support from his family in the past. This history provided a basis for the Tribunal to conclude that it was not likely that his family would allow him to become destitute as he claimed. Mr Giotopoulos seemed to acknowledge this in his answer to the Tribunal's questions, when he referred to having "expired his welcome" at his parent's home: "My current condition is too overwhelming for them. So even though they have remorse over it, they often express a lot of anger, and that creates a tremendous amount of stress. So I'm really not welcome there." He went on to say, "So even though I would think it's unusual that I couldn't go back, I actually can't. And even if they were willing to take me back, I couldn't risk it because my cardiac condition is extremely volatile and it's set off by emotionally or by intentionally - just if I'm in a stressful situation, it goes through the roof." He then mentioned that he was "on every drug imaginable" for his heart condition and that the most important doctor for him was his cardiac specialist Dr Proimos "because he's in Richmond as well". He concluded, "And so for me, I just need a really quiet environment".[20]

42 Likewise, when asked whether there was a possibility of living with his wife or his former wife, he answered only in relation to his second wife by referring to conflict resulting in "a tremendous amount of stress every time we meet".[21]

43 In my view, the evidence before the Tribunal disclosed that Mr Giotopoulos was reluctant to call on family to assist him because it causes him stress, which he believed to be bad for his health. This is consistent with the Tribunal's finding that the hardship likely to be suffered by Mr Giotopoulos was "in terms of the stress and potential adverse effects on his health that might be caused by moving house and the difficulty of finding suitable alternative accommodation."[22]

44 Furthermore, the Tribunal heard evidence that Mr Giotopoulos had not taken the steps that were available to him to advance his application for public housing. Although there was no certainty that Mr Giotopoulos would be allocated public housing on the basis of his medical conditions within any identifiable period, let alone in the short term, there was, as the Director submitted, a factual foundation for the Tribunal's conclusion that Mr Giotopoulos' position would initially be protected and if that position changed, so would his opportunity to obtain public housing in his own right.

45 The Tribunal did not accept that Mr Giotopoulos was likely to become homeless because it did not accept some critical parts of his evidence. Under the heading "Decision" and sub-heading "Findings of Fact", the Tribunal said that it found Mr Giotopoulos' evidence unsatisfactory and conflicting in some respects, and his answers to some questions to have been evasive. In this context, the Tribunal said that it found it difficult to understand Mr Giotopoulos' evidence about the amount of time he spent caring for his children, given his assertion that he is chronically fatigued and has to lie down every couple of hours.[23] In the following paragraphs, it questioned his assertion that he had paid a year's rent in advance to Ms Thomas and pointed to his failure to engage support to locate alternative accommodation, even though he regularly attended an agency that provides such support.[24] Significantly, the Tribunal also referred to the fact, which clearly troubled it, that Mr Giotopoulos had confirmed that his second wife had also befriended an elderly tenant in an adjacent public housing flat and had subsequently moved into the adjacent flat with their young son. When the elderly tenant moved out, Mr Giotopoulos' wife attempted to remain in the property and the Director had to apply to the Tribunal to regain possession of the property. Mr Giotopoulos represented his wife at the hearing.[25] The unmistakable implication is that the Tribunal formed the view that Mr Giotopoulos not only gave unreliable evidence, but that he had resolved to secure public housing for himself and, if possible, his family by means other than by resort to the conventional waiting list processes.

46 The Tribunal's consideration of Mr Giotopoulos' claim that he would lose contact with his sons if forced to leave the Carlton flat was perfunctory. Mr Giotopoulos is correct to say that the Tribunal did not make an express finding about the likely consequence of Mr Giotopoulos being compelled to leave the Carlton flat for his contact with his children. It did, however, express doubt that he was responsible for the care of his sons to the extent that he asserted. It is to be inferred, as Mr Giotopoulos suggested, that the Tribunal did not accept that loss of contact with his children was a likely consequence of being required to leave the Carlton flat.

47 I do not consider that the absence of a finding about the effect on his children of Mr Giotopoulos being compelled to leave the Carlton flat amounted to a failure to take that matter into account. Apart from the fact that the Tribunal repeatedly referred to the existence and whereabouts of Mr Giotopoulos' children, Mr Giotopoulos framed his case in relation to his sons by reference to his impending homelessness. In written submissions, his counsel dealt with the question of his ability to maintain contact with his sons as follows:

If he is rendered homeless, Mr Giotopoulos is likely to lose his 21% custody of each of his three children. Mr Giotopoulos requires housing in order to provide a safe and stable environment in which to interact with his children, and in the case of his youngest child, provide the necessary protection that he requires. Should Mr Giotopoulos' care rights be challenged after he was evicted, it would be extremely difficult for him to mount an argument that the best interests of the child are being served by allowing them to spend 21% of their time in the care of their homeless father.[26]

48 The Tribunal was entitled to proceed on the basis that possible loss of contact with his children was tied to Mr Giotopoulos becoming homeless. That was the way in which he put his case: homelessness was its central plank. It is not material that the Tribunal did not make a specific finding about the likely consequences of eviction on Mr Giotopoulos' ability to maintain contact with his sons. Given the way in which Mr Giotopoulos made his claim for hardship and the necessary interconnection between the different elements of hardship that he advanced, the fact that the Tribunal did not make a finding as to whether he was likely to lose contact with his children if evicted from the Carlton flat did not amount to error.

49 It follows that the Tribunal did not err in evaluating the hardship likely to be suffered by Mr Giotopoulos by applying the wrong test or failing to take into account relevant considerations.

50 There are parts of the Tribunal's reasons that could have been better expressed. However, the reasons of an administrative decision-maker are to be given a beneficial construction. They are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. [27] The Tribunal made it plain that it did not accept Mr Giotopoulos' evidence that he would become destitute if evicted. His likely hardship was evaluated accordingly.

52 Ground 3 relates to the Tribunal's assessment of the hardship the Director would suffer if required to enter into a tenancy agreement with Mr Giotopoulos in respect of the Carlton flat.

53 Mr Giotopoulos contends that in determining that it was not satisfied of the condition in s 233(1)(c), the Tribunal asked the wrong question in failing to ask whether the Director's claimed hardship, namely disruption to the waiting list, constituted severe hardship. Without addressing that implicit requirement, so the argument goes, the Tribunal had a difficult task in comparing the hardship of an individual with a body corporate established under statute. Had the Tribunal first asked whether the Director's hardship would be severe, it would have had a greater chance of correctly determining whether the hardship of Mr Giotopoulos was greater than that of the Director.

54 It is trite that s 233(1) does not require an express finding that the landlord's hardship be severe and that, in concluding that the severe hardship likely to be suffered by the applicant would not be greater than the hardship that the landlord would suffer if a tenancy order were made, the Tribunal must implicitly find that the landlord would suffer severe hardship.

55 The Tribunal, relying on what Forrest J had to say in Cosic,[28] found that in the circumstances of this case, the Director's loss of the capacity to equitably administer the public housing waiting lists, which is one of its principal statutory functions, constituted appreciable detriment to the Director.

56 Mr Giotopoulos contends that the relevant disruption and impediment to the Director in the carrying out of its functions ought to be characterised as a mere 'administrative inconvenience'. He submits that it is an 'absurd result' to characterise the Director's hardship as severe.

57 In written submissions to the Tribunal, counsel for Mr Giotopoulos described the Director's property allocation processes in inherently dynamic terms.[29] Rather than being linear, the structure of the property allocation system is said to resemble a 'web'. There is provision for property allocations to be made outside the 'web', including a 'transfer of tenancy' policy that is complementary to the regime under ss 232 and 233 of the Act. On this basis, Mr Giotopoulos submitted to the Tribunal that:

When understood within the overall context of the Director's system of housing stock management, an order under s 233 does not constitute a disruption to that system. It would result in some delay for the individual or individuals already within the allocations "web", but that delay has to be seen in context. The place of those individuals within the Director's system is already subject to manipulation as a consequence of the Director's own processes for any number of compelling reasons.[30]

58 I do not accept that an order under s 233 does not constitute disruption to the Director's allocation system or that any disruption in this case should have been treated by the Tribunal as a mere 'administrative inconvenience'. In my view, the hardship of the Director in the present case was capable of being characterised as 'severe'.

59 As the Tribunal observed, it is part of the Director's statutory function to ensure that every person in Victoria has adequate and appropriate housing at a price within his or her means, by encouraging the provision of well maintained public housing of suitable quality and location and the distribution, according to need, of Government housing financial assistance.[31] However, because of the scarcity of public housing, people with very serious needs remain on waiting lists. The fact that the 'waiting web' is complex and dynamic, that allocations may be made outside the web and that the system itself provides for tenancy transfers outside the web, does not mean that a single disruption is likely to be of small consequence. To the contrary, the complexity and dynamism of the allocation process may reflect the fact that it is finely calibrated. In this context, a single disruption could be of significant consequence to the Director's ability to equitably allocate the limited number of properties at its disposal.

60 There must, of course, be circumstances in which the hardship likely to be suffered by an applicant for a tenancy agreement will be greater than the hardship to the Director that inheres in the disruption to the orderly and equitable management of the housing allocation system. The legislature has provided by ss 232 and 233 of the Act that an order for a tenancy agreement can be made against the Director in the way that it can against any private landlord. There will plainly be levels or types of hardship that will justify disruption to the orderly administration of the waiting lists. However, the Tribunal found that this was not such a case.

61 The Tribunal was not required to consider the Director's hardship other than for the purpose of comparison under s 233(1)(c) of the Act. It was not required to make an express finding the Director's hardship would be 'severe'. The Tribunal considered the nature of the hardship that would be suffered by the Director by reference to Cosic and the particular circumstances pertaining to Mr Giotopoulos, including the fact that he had not made any attempt to find alternative accommodation in the private rental market and had not taken the necessary steps to expedite his application for public housing on the basis of his health needs. It would also be relevant, in my view, to consider the effect on the orderly maintenance of the 'waiting web' of persons moving in with vulnerable residents in the expectation that if the vulnerable resident(s) can no longer remain in the premises, the new resident can remain and will become entitled to a tenancy agreement with the Director.

62 There was no legal error in the way in which the Tribunal evaluated the hardship that would be suffered by the Director if a tenancy order was made. Ground 3 is not made out.

63 Mr Giotopoulos contends that in determining that it was not satisfied of the condition in s 233(1)(c), the Tribunal made a finding that was illogical, irrational and not based on findings or inferences of facts supported by logical grounds. This is contended to be because:

(a) The Tribunal found that Mr Giotopoulos would suffer severe hardship if his application were not granted;

(b) The only evidence as to the effect on the Director of granting the application was that:

the Director would need to undertake the formal requirements of creating a tenancy;
there were 906 prospective tenants on the waiting list in the relevant area; and
the Director would not be able to choose a tenant from its waiting list to live in the premises;

(c) The Director adduced evidence, which was accepted by the Tribunal, that there were many flats in the Elgin Street building, and that they were being kept vacant rather than being re-let;

(d) The Tribunal found that the Director's hardship would be no less than that suffered by Mr Giotopoulos; and

(e) The evidence before the Tribunal was incapable of supporting the Tribunal's finding that the hardship likely to be suffered by Mr Giotopoulos would not be greater than any hardship that would be suffered by the Director.

64 The general character of Mr Giotopoulos' complaint about the Tribunal's assessment and comparison of the respective hardships is expressed in his written submissions as follows:

If the Tribunal's findings are to be accepted, the granting of a single tenancy under s 233 will bring about such disarray that the Director's (sic) will be prevented from performing one of its primary functions. The Director will face such severe hardship that it would exceed the hardship of a man evicted from his home while suffering a multitude of life-threatening ailments with the likely consequence of loss of contact with his children (even assuming that the appellant would not be rendered homeless).[32]

65 In other words, as a general proposition, Mr Giotopoulos contends that the Tribunal could not reasonably have decided that the creation of a single tenancy in his favour could cause greater detriment to the Director than the plainly severe hardship that he would suffer if evicted by reason of his life threatening illnesses and family responsibilities. Mr Giotopoulos complains, in essence, that the hardship that the Tribunal found would be suffered by the Director was not based on any findings of fact or inferences supported by logical grounds. The implicit finding that the Director would suffer severe hardship "was not rational, and [was] not open to the Tribunal".[33] Again, it is submitted that the effect on the Director of a tenancy order in favour of Mr Giotopoulos should be characterised as an inconvenience or as an aberration in the operation of departmental policy that is in any event flexible.

66 Mr Giotopoulos points to evidence before the Tribunal that the inner metro north region of Melbourne had a waiting list of 906 people, but at the time of hearing, vacant properties were being held to facilitate a future refurbishment and redevelopment, rather than re-let. The evidence was also that the only effect of an order on the Director would be that a new tenancy would need to be created, in exactly the same way as any other tenancy is created. Moreover, there was evidence before the Tribunal that housing was re-allocated when need arose because of special circumstances such as bushfires or refurbishment; that there is a procedure for re-allocating tenancies from one tenant to another; and that the Director had already consented to Mr Giotopoulos becoming a sub-tenant of Mr and Mrs Thomas in October 2008.

67 Aside from the fact that the Court cannot interfere with the Tribunal's findings simply because it would have made different findings on the evidence, this ignores the Tribunal's findings on the nature of the detriment that would be suffered by the Director by reason of disruption to public housing waiting lists if a tenancy order were made. While a single tenancy is a small matter viewed in the context of the total number of public housing tenancies and the housing resources administered by the Director, a requirement that the Director provide Mr Giotopoulos with the public housing that he has selected for himself without any requirement that his needs be considered in the context those of other persons on the public housing waiting list could, in effect, undermine the integrity of the system that has been put in place to ensure the equitable allocation of scarce resources to persons in need.

68 The nature or quality of the interference in the Director's ability to administer the housing allocation system is relevant to the evaluation of the Director's hardship. The Tribunal was plainly concerned about the manner in which Mr Giotopoulos came to occupy the Carlton flat and his wife came to occupy the flat next door. Neither one of them had any previous relationship with the elderly tenants of those premises. It was open to the Tribunal to conclude that their actions were opportunistic and represented a danger to the integrity of the housing allocation system. Hence, the Tribunal expressed concern about the rights of others being "circumvented and overtaken" and about "vulnerable clients" being targeted by persons who see the opportunity to obtain scarce public housing by a process similar to that used by Mr Giotopoulos. It expressed this concern in the context of the exercise of its discretion, rather than in the course of evaluating the hardship suffered by the Director or comparing hardships. Nonetheless, those factors are relevant, in my view, to the nature and quality of the disruption to the orderly maintenance of the public housing waiting lists and therefore to the severity of the hardship that would be suffered by the Director.

69 The fact that the Carlton flat will most likely remain vacant for a period after Mr Giotopoulos is evicted is not to the point. In order to provide suitable housing to the many people who require it, the Director must be in a position to renovate and renew housing stocks.

70 I have considered under Grounds 1 and 2 the way in which the Tribunal treated the evidence of the hardship that Mr Giotopoulos would be likely to suffer if compelled to leave the Carlton flat and have identified no error in the way in which it reached the conclusion that Mr Giotopoulos' hardship would be severe. The Tribunal did not accept the central tenet of his case relating to homelessness, but it did not, in my view, understate or underestimate the significance of the medical evidence and the seriousness of his medical conditions.

71 It was therefore open to the Tribunal to make the findings as to the respective hardships that it did and to undertake the comparison required by s 233(1)(c) on that basis.

72 Mr Giotopoulos submitted that the Tribunal made no attempt to compare hardships in the manner required by s 233(1)(c). Certainly, the comparative exercise was undertaken very briefly. It consisted of the simple statement that when balancing the respective parties' rights under section 233(1)(c) the Tribunal was of the view that both parties would suffer hardship but that the hardship suffered by Mr Giotopoulos would not be greater than any hardship that the Director would suffer if the order were made.

73 Section 233(1)(c) is not an easy provision to apply in any circumstances, but it is particularly difficult when the landlord is not a person capable of suffering hardship of the kind that may be suffered by an individual. The Director, as a statutory corporation, is not capable of being rendered destitute, having its health ruined, losing its privacy or access to family or other support. Even the quantification of financial detriment is difficult where the landlord is charged with the provision of subsidised housing and is performing a public service. Any detriment suffered by the Director will necessarily be of an entirely different order from that of an individual applicant. Accordingly, unsatisfactory as this may seem, the comparison of the hardship of the Director and that of the individual applicant is incapable of supporting detailed analysis. It is very much a matter for the judgment of the Tribunal, having regard to the particular circumstances of the applicant and the competing hardships identified. The High Court has recently warned against the Court deciding an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) making the essentially factual, evaluative and ministerial judgments that the legislature has given to the Tribunal to make.[34] The evaluative judgment made by the Tribunal under s 233(1)(c) was open to it and ought not to be impeached.

74 There is authority that an administrative decision requiring a state of satisfaction by the decision-maker can be challenged on the basis that it was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds" if the illogicality or irrationality occurred at the point of satisfaction.[35] This would involve a jurisdictional fact and could give rise to jurisdictional error. Caution must be exercised, however, to ensure that the description of a decision as illogical or irrational is not merely an emphatic way of expressing disagreement with it.[36] Moreover, whilst there may be varieties of illogicality and irrationality, "a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker."[37]

75 On the evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal, namely that the hardship likely to be suffered by Mr Giotopoulos if a tenancy order were not made would not be greater than the hardship the Director would suffer if the order were made.

77 Grounds 6, 7 and 8 concern the exercise of the Tribunal's discretion. As there was no error in the Tribunal's consideration of the matters in s 233(1)(a), (b) or (c), the correctness of what the Tribunal said concerning the exercise of its discretion does not affect Mr Giotopoulos' prospects of success on appeal. However, it is convenient to say something briefly about Mr Giotopoulos' submissions about the exercise of discretion, particularly in relation to the obligations of the Tribunal under the Charter, where the Tribunal would have fallen into error, had the application before it turned on the question of discretion.

78 By Ground 6, Mr Giotopoulos contends that in exercising the discretion granted by s 233(1) of the Act in favour of the Director, the Tribunal took into account irrelevant considerations and improperly fettered the exercise of its discretion, which thereby miscarried. The impermissible considerations are said to be the possible precedential effect of the exercise of the discretion in favour of Mr Giotopoulos and 'hypothetical alternative factual scenarios'.

79 Although the expression of this ground is opaque, it appears to be directed to the matters dealt with in paragraphs 82 and 83 of the Tribunal's reasons, in which it observed that if someone in Mr Giotopoulos' situation were granted tenancy rights, it would set a dangerous precedent, enabling the rights of other persons on the waiting list who had "acted in an appropriate manner and waited their turn" to be "circumvented and overtaken".[38] The Tribunal said that Mr Giotopoulos could take the necessary steps to have his application for public housing transferred to the 'urgent' medical needs waiting list. The Tribunal concluded:

In my view any rights that JG has should not be allowed to override the rights of those who have been waiting for many years and those whose need for public housing have been assessed as greater than or indeed similar to his. [39]

80 I do not accept that these considerations are irrelevant to the exercise of discretion under s 233(1) of the Act. They are not 'hypothetical' considerations, but concern the very facts before the Tribunal, in particular, the circumstances in which Mr Giotopoulos came to occupy the Carlton flat and the circumvention of the task that would otherwise be carried out by the Director of assessing his needs in relation to the needs of other persons on the waiting list.

81 Insofar as this involved the Tribunal considering the same factual matters as were relevant under s 233(1)(c), I do not consider that it was precluded from so doing. There is nothing in the Act that precludes consideration of the same factual matters that were considered in relation to the satisfaction of the conditions in s 233(1)(a), (b) and (c). Indeed, one would expect the Tribunal to consider factual matters relating to the applicant's hardship in the exercise of its discretion.

82 By Grounds 7 and 8, Mr Giotopoulos submits that the Tribunal acted incompatibly with Mr Giotopoulos' human rights and/or failed to give proper consideration to his human rights, in that it failed to have regard to its obligations under s 38 of the Charter as a 'public authority'. It is also submitted that the Tribunal asked itself the wrong question in relation to the operation and effect of s 32 of the Charter, which requires it to interpret legislative provisions, so far as it is possible to do so consistently with their purpose, compatibly with human rights.

83 The Tribunal, through no fault of its own, applied the wrong methodology in purporting to fulfil the interpretative obligation in s 32 of the Charter. It referred to and purported to apply the methodology described in Kracke v Mental Health Review Board,[40] which amongst other things, required the statutory provision to be first interpreted using the 'ordinary' tools of statutory interpretation before applying the 'special' interpretative tool in the Charter. That methodology was rejected by the Court of Appeal in Momcilovic v R.[41] There, the Court held that the interpretative obligation under the Charter arises from the outset and involves exploring all 'possible' interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights.[42]

84 Moreover, Mr Giotopoulos is correct to point out that the Tribunal omitted to give consideration to the obligations under s 38 of the Charter and whether the Tribunal was a 'public authority' for the purposes of the Charter when it embarked on its consideration of Mr Giotopoulos' application under s 232 of the Act.[43] Pursuant to s 38(1) of the Charter, is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. The obligation imposed by s 38(1) is distinct from and additional to the obligation to interpret legislation compatibly with human rights, as required by s 32 of the Charter. Nowhere in its reasons does the Tribunal expressly consider the obligation to act compatibly with human rights in exercising the discretion under s 233 of the Act.

85 The Tribunal concluded that, because s 233 operated to enhance a person's rights rather than to limit them, Charter rights were not engaged at all. To similar effect, the Director argued that any infringement of Mr Giotopoulos' rights would flow from the making of the possession order rather than as a result of the Tribunal's exercise of its discretion against him under s 233(1) and that it was no part of the Tribunal's jurisdiction under s 233 of the Act to determine that the possession order made under s 345 of the Act involved an arbitrary interference with Mr Giotopoulos' home and family.

86 Like many questions involving the operation of the Charter, which has been grafted on to existing statutory arrangements directed to conferring benefits and protecting rights, the question is not an easy one. In DPP v Ali (No 2),[44] Hargrave J held, in relation to the application of a provision enabling the Court to make an order excluding property from confiscation on hardship grounds under the Confiscation Act 1997 (Vic) that that the provision was, by itself, incapable of breaching or limiting any human right. His Honour described it as is a "purely ameliorative provision", to be considered only after a civil forfeiture order had been made by the court under s 38(1) of the Confiscation Act. Section 38(1) was the provision which authorised the making of a civil forfeiture order, and which thus had the capacity to arbitrarily interfere with the family home of the applicant.

87 Section 233 is not "purely ameliorative". Section 233 may, as in this case, operate to ameliorate the harsh effects of a possession order by, in effect, displacing it and giving the applicant a right to possession. However, a tenancy order may be made in a variety of situations, including where the original tenant has abandoned or vacated the premises or has died and there is no surviving tenant. It is not contingent on the existence of a possession order. It gives a person who has been living in rented premises with a tenant the benefit of the tenancy and thereby secures their ability to continue to reside in what has been their principal place of residence. The decision to make or not to make a tenancy order must therefore be seen to engage the person's right to non-interference with his or her home and family and his or her family's entitlement to be protected by society and the State.

88 It is not to the point that in this case, the making of the possession order has engaged Mr Giotopoulos' right to non-interference in his home and that it will be the enforcement of the possession order that results in Mr Giotopoulos being evicted from the Carlton flat rather than the refusal of the tenancy order. Charter rights are capable of being interfered with at both stages. Mr Giotopoulos still lives in the Carlton flat and it continues to be his home and the locus of his family life for the purposes of ss 13(a) and 17 of the Charter. Despite the making of the possession order, his right to non-interference in his home and family did not cease to be relevant to other actions or decisions by public authorities that were capable of interfering with those rights.

89 Accordingly, assuming that the Tribunal was acting as a 'public authority' for the purposes of the Charter, Mr Giotopoulos' Charter rights would have been engaged had the Tribunal been required to consider exercising its discretion to make a tenancy order under s 233. The Tribunal erred in concluding that his Charter rights could not be engaged by s 233.

90 The Tribunal, despite this error, purported to carry out a proportionality analysis in relation to interference in home and family in the penultimate paragraph of its reasons. This analysis, which consists almost entirely of a recitation of the terms of s 7(2) of the Charter would, if taken in isolation, have been insufficient to satisfy the requirements of s 38(1) of the Charter. As this Court said in Castles v Secretary to the Department of Justice, "the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra".[45] I note, however, that there was considerable material before the Tribunal to enable the proportionality analysis to be undertaken and that the Tribunal, in identifying and comparing the respective hardships of Mr Giotopoulos and the Director, went some way to analysing whether the refusal to grant a tenancy order and give Mr Giotopoulos security of tenure would be 'justified' in the relevant sense in the circumstances of this case.

91 In Secretary to the Department of Premier and Cabinet v Hulls,[46] the Court of Appeal described guidelines for the grant of leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), whilst stressing that the decision whether to grant leave "must always depend upon the justice of the case, as it appears to the court from whom leave is sought."[47] Ordinarily, the applicant must identify a question of law and establish that there is a real or significant argument in favour of the applicant, at least to the extent that there is sufficient doubt about it to justify the grant of leave. Additionally, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice on the applicant.

92 The decision of the Tribunal in relation to the threshold questions in s 233(1)(b) and (c) is not attended by sufficient doubt to warrant the grant of leave to appeal. Although the Tribunal erred in relation to the exercise of discretion, given its decision in relation to the threshold questions, such error was not material. In my view, the justice of the case requires leave to appeal to be refused.

[1] Or the relevant government Department.

[3] Giotopolous v Director of Housing (Unreported, VCAT, June Good (Member), 10 November 2009) [66].

[13] And thereby failed to exercise the jurisdiction committed to it by s 233(1) of the Act.

[14] And thereby failed to exercise the jurisdiction committed to it by s 233(1) of the Act.

[15] Giotopolous v Director of Housing (Unreported, VCAT, June Good (Member), 10 November 2009) [41].

In my view, there must be some doubt as to whether the correct test in s 233(1)(b) is whether there is 'a real and not remote chance' that an applicant will suffer serious hardship. The meaning of the word 'likely' varies according to the context in which it is used: Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, 20; see also RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526, 534-7. An order made under s 233 of the Act has the effect of compelling a landlord to enter into a commercial arrangement against the landlord's will, in circumstances where it may cause the landlord hardship or even severe hardship. There is reason to suppose that in such a context, the legislature would have intended 'likely' to involve a higher level of probability than 'real and not remote'. This was averted to in the respondent's written submissions but not argued before me. Accordingly, I do not propose to determine that question in this proceeding. If the Tribunal erred in that it applied the test of 'real and not remote', that is to Mr Giotopoulos' advantage.

I do not accept that JG would necessarily be rendered "homeless" and forced to live in his car as claimed, if he were evicted from the flat. The evidence indicated that he had previously lived with his parents in Box Hill for a number of years and that they continued to live in that property. They are the only occupants in a three bedroom house and I do not accept that they would refuse him shelter if he had nowhere else to live at least in the short term.

The hardship of the applicant is in terms of the stress and potential adverse effects on his health that might be caused by moving house and the difficulty of finding suitable alternative accommodation. JG claims that he will be homeless if the order is not made. As stated above, whilst I acknowledge that the applicant will no doubt find it stressful to move, I am not satisfied that he will be rendered homeless if he is forced to leave the Carlton flat. At the hearing he said that he could not return to his parents' house as he "had worn out his welcome". However I believe that it is likely that he could move back with his parents if he were unable to obtain accommodation elsewhere.

[18] Transcript of Proceedings, Giotopolous v Director of Housing (VCAT, R2009/33456, June Good (Member), 12 October 2009) 21.4 - 21.26.

[19] Giotopolous v Director of Housing (Unreported, VCAT, June Good (Member), 10 November 2009) [69].

[20] Transcript of Proceedings, Giotopolous v Director of Housing (VCAT, R2009/33456, June Good (Member), 12 October 2009) 21.29 - 22.10.

[22] Giotopolous v Director of Housing (Unreported, VCAT, June Good (Member), 10 November 2009) [79].

[23] Giotopolous v Director of Housing (Unreported, VCAT, June Good (Member), 10 November 2009) [69].

[26] Outline of Submissions of the Applicant dated 12 October 2009 [31].

[27] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, referring to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287.

[28] Cosic v Director of Housing [2007] VSC 486 (7 December 2007).

[29] Outline of Submissions of the Applicant dated 12 October 2009 [56]-[66].

[32] Appellant's Outline of Submissions dated 29 April 2010 [47].

[34] Osland v Secretary to the Department of Justice [2010] HCA 24 (23 June 2010) [20] (French CJ, Gummow and Bell JJ).

[35] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.

[36] Ibid [124], referring to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) ALJR 1165, [5] and Minister for Immigration v Eshetu (1999) 197 CLR 611, 626.

[37] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, 649.

[38] Giotopolous v Director of Housing (Unreported, VCAT, June Good (Member), 10 November 2009) [82].

[40] [2009] VCAT 646 (23 April 2009).

[43] See Director of Housing v Sudi [2010] VCAT 328 (31 March 2010).

[44] DPP v Ali (No 2) [2010] VSC 503 (10 November 2010).

[45] [2010] VSC 310 (9 July 2010) [186].

Human Rights and Responsibilities Act 2006

Civil and Administrative Tribunal Act 1998

At a glance

Court

Decision date

Before

Source

Judgment (131 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)