Director of Housing v Sudi

Director of Housing v Sudi - [2010] VCAT 328 - VCAT 2010 case summary — Zoe

[3]

Mr Sudi was born in Somalia on 1 January 1982.
He came to Australia with his mother, Qamar Ali, and his siblings as refugees. They arrived in 1995 and lived initially in Sydney. The family moved to Melbourne in early 1998.
The director entered into a tenancy agreement with Ms Ali in respect of the premises on 24 February 1998. The tenancy commenced on 1 March 1998.
Mr Sudi lived at the premises with his mother from March 1998 until about August-September 2005, from May until about June 2007 and from June 2008 to date.
While Mr Sudi was living with his mother and was then about 21 years of age, he made application for the transfer of the tenancy of the premises from her to him. She also made application for such a transfer. The application was refused by the director on 9 October 2003 on account of outstanding rental arrears. That was in breach of the relevant guidelines. If the guidelines had been properly applied, this controversy may have been avoided.
Mr Sudi married Mariam Shek in a Muslim ceremony on 20 November 2005. He was not living with his mother at the premises at the time.
Mr Sudi and Ms Shek's son, Shire Warfa, was born on 1 November 2006. Ms Shek was his primary care giver from November 2006 until November 2008. From November 2008, Shire has lived with Mr Sudi at the premises and he has been his primary care giver. Under an informal arrangement, Mr Sudi looks after Shire except from Saturday afternoon to Sunday afternoon, when he is looked after by Ms Shek.
In November or December of 2006, Mr Sudi and Ms Shek separated.
Mr Sudi returned home to live at the premises to care for his ailing mother, who had cancer, for about three months from May 2007.
Ms Ali died whilst receiving treatment for cancer in Germany.
From about November 2008, Mr Sudi has been unemployed. He lives on Centrelink payments. His only assets are a car, worth about $5,000, and his household goods, worth about $3,000.
Mr Sudi moved back into the premises in about June 2008. On 5 December 2008, Mr Sudi's support worker advised the director that he was living at the premises.
On 29 December 2008, the director sent a letter to the occupier of the premises requiring them to vacate. This purported to terminate any lease or licence which Mr Sudi had to occupy the premises.
In these factual circumstances, both parties have made applications to the tribunal. The applications were argued as test cases on the operation of the applicable provisions of the Residential Tenancies Act in the context of the Charter.
The director has made two applications (R2009/1177 and R2009/33454). Both are for orders for possession under s 344 of the Residential Tenancies Act. I will give a determination in these applications.
There is a cross-application by Mr Sudi (R2009/3264) for the creation of a tribunal-ordered tenancy under s 232 of the Act. The tribunal is a public authority under s 4(1) of the Charter when determining such applications, and it will be so declared. Otherwise it will not be necessary to determine this application, which will be adjourned. My preliminary view is that Mr Sudi has a convincing case. He has a strong and genuine connection with the premises over a long period of time, and certainly cannot be regarded as a 'queue jumper'.
Before examining the statutory provisions governing possession orders, it is important to identify the human rights which are engaged.

[12]

'Disadvantaged people in need of social housing and at risk of homelessness are among the most vulnerable in the community. Their human rights are imperilled by their circumstances.' I made that statement in Metro West v Sudi.[7] If I may say so, it explains the obvious reason why the application of the rights in section 13(a) is very important in the context of public housing. As this case mainly concerns Mr Sudi's home, I will focus on his rights in that respect.
In human rights, identifying a person's 'home' is approached in a common-sense and pragmatic way. It depends on the person showing 'sufficient and continuous links with a place in order to establish that it is his home'.[8] Manfred Nowak, speaking of article 17(1) of the ICCPR, says 'the home symbolises a place of refuge where one can develop and enjoy domestic peace, harmony and warmth without fear of disturbance.'[9] If someone's links with the place where they live are 'close enough and continuous enough', that is their home.[10] The general approach is 'to apply a simple, factual and untechnical test, taking full account of the factual circumstances but with very little of legal niceties.'[11] The concept of 'home' in human rights is autonomous[12] and is not based on 'domestic notions of title, legal and equitable rights, and interests'[13] In short, it is a question of fact, not law. A home may be where a person or family is living in unlawful occupation. Where a tenant is living in social housing, the rented premises are their home for the purposes of s 13(a) of the Charter. This remains so where the tenant continues to live in the premises after the end of the tenancy, or continues to occupy the premises without consent.[14] The same principle applies to other arrangements under which a person may be living in a place which is their home.[15]
The Charter does not define 'family'. In this human rights context, it would not be narrowly interpreted or confined. A father and his three year old son - Mr Sudi and Shire - are a family within s 13(a) (and s 17(1)).
Likewise, the question of what amounts to an 'interference' with the rights in s 13(a) is approached in a 'simple and untechnical' manner.[16] This is Manfred Nowak, again speaking of article 17(1) of the ICCPR: 'Every invasion of that sphere paraphrased by the term "home" that occurs without the consent of the individual affected... represents interference.'[17] Evicting or seeking to evict someone living in social housing is interfering with the human rights relating to their home.[18] Any attempt to do so, directly or indirectly or by process of law, constitutes such interference.[19] Serving a notice to quit and bringing possession proceedings constitute such interference.[20] The latter is especially applicable in the present case. Where a family is living in the premises, such actions also constitute an interference with the human rights relating to their family.[21] Other decisions which deprive a person of, or impair their capacity to live in, their home also constitute an interference, such as denying them planning permission[22] and undertaking enforcement measures,[23] and withdrawing a permission already held, rendering people homeless.[24]
There is a substantial jurisprudence on the subject of these rights, especially at the Strasbourg court and in the United Kingdom. I will first look at some of the important decisions of the court at Strasburg. They have been much discussed in subsequent decisions under the Human Rights Act by the courts in the United Kingdom, to which I will refer next.

[43]

There have been several important decisions in the European Court of Human Rights at Strasbourg on the legality requirement. They are discussed in Kracke.[93] Here I will mention only two.
Malone v United Kingdom[94] was concerned with the right to respect for private and family life in article 8(1) of the ECHR in the context of wire-tapping activity by the police. To be compatible with human rights, the wire-tapping had to be 'in accordance with the law', as required by article 8(2).
The court considered 'the quality of the law', which had to be compatible with the rule of law, for that was a purpose of the Convention.[95] The law had to provide 'a measure of legal protection ... against arbitrary interferences by public authorities with the rights safeguarded' by article 8(1).[96] Domestic laws must be foreseeable, which meant they must 'be sufficiently clear in [their] terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to' infringe this right.[97] A law which conferred discretion was not in itself inconsistent with the requirement for foreseeability, if the scope of the discretion and the manner of its exercise were identified "with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.'[98]
The court held the wire-tapping laws of the United Kingdom were too vague and upheld the applicant's complaint.[99]
Olsson v Sweden[100] offered a summary of the three requirements of being 'in accordance with law' under article 8(2): (a) precision and foreseeability (which did not mean excessive rigidity); (b) protection against arbitrariness, consistent with the rule of law; and (c) reasonable indication of the scope of any discretion, having regard to its legitimate aims.[101]
The importance of safeguards has been emphasised in a number of cases concerning people with mental illness.[102] The general principle was explained by Beatson et al as follows:[103]

[53]

In The Government of the Republic of South Africa v Grootboom,[108] 510 children and 390 adults were forcibly evicted from informal homes on private vacant land which they had invaded, and thus were rendered homeless. The community found itself on a dusty sports field with no shelter and no land on which to build any. A court had ordered the government to provide them with emergency accommodation, which it appealed. The Constitutional Court identified the scope of the right to access adequate housing in s 26 [109] and upheld the order. It held the reasonableness of state action to implement the right had to take account of the inherent dignity of human beings. Yacoob J said: 'human beings are required to be treated as human beings.'[110]
The constitutional right to housing was the backdrop to Port Elizabeth Municipality v Various Occupiers.[111] The court reconciled the legitimate rights of land owners not to be arbitrarily deprived of their property with the equally legitimate rights of everyone to have access to housing. The context was legislation for the control of illegal squatting. The Constitutional Court held that it was not 'just and equitable' to order the eviction of the occupiers.[112] They had been on unused land for a long time and the municipality had not listened to their problems or attempted to deal with their needs.[113] The court held the case required it 'to go beyond its normal functions, and to engage in active judicial management' towards finding a solution to the problem.[114] Doing so had procedural and other dimensions. For example, the court decided the fact that mediation had not been tried was an important factor in deciding whether it was just and equitable for an eviction order to be made.[115]
The importance of innovative procedural solutions was taken a step further in Occupiers of 51 Olivia Road v City of Johannesburg.[116] The Constitutional Court held it would not be just and equitable to evict the squatting community where the municipality had not meaningfully engaged with the residents to find functional solutions.[117]
In President of the Republic of South Africa v Modderklip Boerdery Pty Ltd,[118] the Constitutional Court held the state had effectively expropriated the property of the private land owner by failing to provide a mechanism to give effect to an eviction order. It ordered compensation, but permitted the squatter community, which numbered thousands of people, to remain until alternative land was made available by the state.[119]
Finally, in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes[120] the government wished to relocate a large and settled community of some 20,000 people (some 4,400 households) so that better housing could be built. It obtained eviction orders and the community complained about the adequacy of the alternative accommodation. The Constitutional Court upheld the eviction orders, because eviction was a reasonable means to facilitate the housing redevelopment programme.[121] But the relocations brought about by the evictions had to be consistent with 'justice and equity'.[122] To this end, the court made very specific orders about the standard of accommodation to be offered.
In ending this digression, I emphasise that I am mentioning these cases only by way of contrast. They illustrate how a court carries out its functions in a jurisdiction where these matters are justiciable. Under the Charter, we have the right against unlawful or arbitrary interference with privacy, family and home as an obligatory civil and political right, not a right to housing as an enforceable economic, social and cultural right. However, both of these different systems of rights protection share something deeply in common: recognition of the fundamental importance of housing to human dignity, to personal and family wellbeing and to democratic society.
That being the scope of the human rights against unlawful or arbitrary interference with the family and home in s 13(a) of the Charter, let me now determine whether the tribunal has jurisdiction to consider the issues arising from the application of those rights in this case.

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The court went on to hold that s 32(1) of the Charter was relevant to all interpreters, including courts and tribunals, but they were not to consider justification 'before the meaning of legislation was finally ascertained'.[134]
To comply with this approach, I think it is still necessary to identify the scope of any right engaged by the statutory provision at issue. It is not possible to identify what interpretation least infringes human rights unless the scope of the right is first identified. For the reasons I gave in Kracke, the scope of a human right is identified in its plain state, purposefully and generously, by reference to the cardinal values which it expresses and focussing on the interests which it was meant to protect, without taking justification of potential limits into account.[135] Once the scope of the right has been so identified, the interpretation of the provision which least infringes this right can be adopted, if that is possible consistently with its purpose under s 32(1).
As I did with the same submission in XYZ v Victoria Police,[136] I here reject the applicant's submission that I must search for and adopt the interpretation which least infringes human rights. That submission does not specify any limits at all to the interpretation which must be adopted. It is not the approach which was established by the Court of Appeal in R v Momcilovic, as the above passage makes clear. Under that approach, I must explore all 'possible' interpretations and adopt that which least infringes human rights, but what is 'possible' is determined by reference to the existing principles of interpretation, including the principle of legality. These principles supply the framework for determining what least infringing interpretations might possibly be available for consideration. If you refer to the need to adopt the least infringing interpretation which is possible, you must also refer to what the court specifically said about how the possibilities are to be identified.
Applying the principles established in R v Momcilovic to the present case, Mr Sudi submitted that, of the possible interpretations of s 345, the one which least infringed human rights was that which required the tribunal to determine whether an applicant who was a public authority had complied with its obligations under the Charter as part of determining whether that applicant was 'entitled to possession' of the premises. That submission has to be considered against what Maxwell P, Ashley and Neave JJA said about the identification of 'possible' interpretations.
According to the existing rules of interpretation, a human right will be relevant to the interpretation of a provision if it is engaged by its operation, in the sense that it limits or impairs the enjoyment of the right by the individual. As we have seen, the scope of the right is broadly and purposefully identified in this context. Justification is not part of the analysis.
I have identified the scope of the rights at issue in the present case, especially the right not to have your privacy, family or home unlawfully or arbitrarily interfered with (s 13(a) of the Charter). Taking those rights into account, Mr Sudi and his son have something very significant at stake in this case. Because a possession order would result in them being evicted, it would seriously interfere with and engage their rights to family and home, at least. It is not necessary to consider whether their other human rights would also be engaged.
It is next necessary to determine whether it is possible to interpret the provisions consistently with those rights under the existing rules of interpretation, as established in R v Momcilovic.[137] This is the ordinary process of interpretation, including the principle of legality, not reinterpretation. An interpretation will not be possible under s 32(1) if it is inconsistent with the purpose of the provision according to the conventional understanding of that concept of purpose, not the broader understanding inherent in s 3(1) of the Human Rights Act which, according to Lord Phillips in the first decision of the recently established United Kingdom Supreme Court, requires consideration of the 'underlying' purpose of the provision.[138] The existing framework of the rules of interpretation includes the 'powerful presumption'[139] of the principle of legality. In R v Momcilovic, Maxwell P,Ashley and Neave JJA cited[140] this explanation of that principle by Gleeson CJ in Plaintiff S157/2002 v The Commonwealth:[141]

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From the express language of the provisions of Division 3 of Part 7 of the Residential Tenancies Act, it is clear enough that their purpose is to enable people who are 'entitled to possession' of premises to recover that possession by a simple and convenient process. The focus of the provisions is the entitlement 'to possession' of the premises and the means by which that 'possession' may be recovered.
Section 344(1) specifies who may make applications and gives them the discretionary capacity to do so. It allows a person who 'claims to be entitled to the possession of premises' to apply for a possession order in the specified circumstances.
Section 345(1) requires the tribunal to make a possession order when the specified conditions are met. Section 345(a) requires the tribunal to determine whether 'the applicant under section 344' is 'entitled to possession' of the premises. Section 345(b) requires the tribunal to determine whether there are reasonable grounds for believing the person is occupying the premises without licence or consent. The provisions describe the entitlement (if any) of the occupier - 'licence or consent' - in legal terms. Under these provisions, if the applicant is an applicant under s 344 and the conditions are satisfied, the tribunal has no discretion to refuse to make or to defer making a possession order. This is a scheme for the compulsory making of possession orders in favour of people who have exercised their capacity to make application under s 344 and who have the requisite possessory entitlement against persons occupying premises without licence or consent.
Section 346(1) makes provision for what the possession order must provide and for how the principal registrar is to carry it out. Under s 346(a), the order may direct the principal registrar to issue a warrant of possession. Under s 346(b), the order may provide for the giving of notice to the occupiers of a hearing in the tribunal, and requiring their attendance.
Section 347 makes provision for the serving of orders and notices, including by affixing them to a door of the premises.
Section 348 requires the tribunal to direct the principal registrar to issue a warrant of possession if the occupier fails to appear in response to being given notice.
Section 349 specifies what the tribunal must do at a hearing, if it orders one. Section 349(a) requires it to determine 'the matter', after giving the parties an opportunity to be heard. From the context of the provisions of Division 3 and s 349(a), (b) and (c), I think 'the matter' is the entitlement to possession of the applicant under s 345(a) and whether the respondents are occupying without licence or consent under s 345(b). Section 349(b) requires the tribunal to direct the issue of a warrant, if it is satisfied the applicant is 'entitled to the premises' (I think this means entitled to possession of them). Section 349(c) allows the tribunal to cancel a possession order if it is satisfied the applicant is not entitled to possession.
That being the purpose and operation of the provisions, I think the words 'entitled to possession' in s 345(a) refer to the entitlement of the applicant to possession of the premises under a law governing that subject. An entitlement to possession would usually arise under the law of property as an incident of the applicant's ownership of the premises, but clearly other legally recognised possessory interests, such as an entitlement under a head lease or legislation, would also suffice. Nothing in Division 3, and ss 345 and 349 in particular, suggests the tribunal can, in determining a valid application for possession under s 344, consider matters beyond the possessory entitlement of the applicant in terms of the law of property or other law of that kind. 'Entitled to possession' does not involve human rights considerations.
I think the provisions clearly and unambiguously show the legislature intended to allow a person who was legally entitled to possession of the premises to make application for and obtain an order for possession against someone in occupation without licence or consent, even if that meant evicting them from their home, as it usually would. Although the word 'entitled' might, in another context, be capable of having a more general meaning, I think here the word relates only to the applicant's possessory entitlement in terms of law of property or other law of that kind.
Mr Sudi contends that to interpret s 345(a) as referring only to a legal entitlement to possession would read words of limitation into the provision, which would be inconsistent with both s 32(1) of the Charter and the common law presumption against interference with rights. On the contrary, it would read words of limitation into the provision to do otherwise.
There is no dispute that the director is legally entitled to possession of the premises in the necessary sense.
Although the making of a possession order would severely interfere with Mr Sudi's human rights to family and home, and those of his son Shire also, it is not possible under the existing rules to interpret the provisions consistently with those rights.
This case was fully argued before the Court of Appeal delivered its judgment in R v Momcilovic.[142] Extensive submissions were made about whether the provisions of Division 3 could be interpreted under s 32(1) of the Charter on the basis that it operated as a principle of reinterpretation like s 3(1) of the Human Rights Act in the United Kingdom. After R v Momcilovic, the parties agree this is not possible.

[65]

To repeat, the director is a public authority under s 38(1) of the Charter. He is obliged to take actions and make decisions in a way that is compatible with human rights. Section 38(2) excludes the obligation where there is contrary legislation, but there is none in the present case.
Mr Sudi and his young son Shire live as a family at their home in premises belonging to the director. The director is seeking to have them evicted. To that end, he has made an application for a possession order under s 344(1) of the Residential Tenancies Act.
Mr Sudi and his son have the human rights to family and home in s 13(a) of the Charter. By reasons of s 38(1), it is unlawful for the director to take action or make decisions incompatibly with those rights.
Seeking to evict Mr Sudi and Shire, and applying for the possession order specifically, severely interferes with their human rights to family and home. If not justified under s 7(2) of the Charter, this would breach those rights and be unlawful under s 38(1).
The director points out that application under s 344(1) can be made by persons who are public authorities and persons who are not. That is true. But s 38(1) applies to the actions and decisions of persons who are public authorities, including making applications under s 344(1), while it does not apply to the actions and decisions, or such applications, of persons who are not.
The question whether seeking to evict people from their home in particular cases is incompatible with human rights has been considered in the courts in Strasbourg and the United Kingdom. The resolution of the question in those jurisdictions has turned on issues of justification. I have referred to the relevant authorities and principles. Rather than presenting evidence and making submissions along those lines, the director has offered nothing by way of justification for his interference with the human rights of Mr Sudi and his son. That course was deliberate. The director submits the tribunal has no jurisdiction to consider that question. Having failed to offer anything in justification of the interference, he accepts that, if the tribunal does have jurisdiction, he will be found to have acted in breach of human rights.
On the director's submission, the tribunal has a limited statutory jurisdiction. That I accept. The director further submits the tribunal's jurisdiction does not extend to determining whether the director, in seeking to evict Mr Sudi and his son and in making the application under s 344(1), breached the Charter, and thus took actions and made decisions which were 'unlawful' under s 38(1). That I do not accept.
VCAT is a tribunal not a court and has no inherent jurisdiction.[143] Although it has certain obligations under the Charter as a public authority, and can determine certain issues under the Charter when they legitimately arise in proceedings within its jurisdiction, it has no express jurisdiction with respect to the question of whether a public authority has breached human rights.
On the other hand, the tribunal has both the jurisdiction and the obligation to determine whether it has jurisdiction in a proceeding, including the validity of provisions which impact on that jurisdiction. It also has the jurisdiction to determine legal issues which legitimately arise in a proceeding within its jurisdiction, [144] including issues concerning the interpretation and application of the Charter. Such determinations are subject to the supervisory jurisdiction of the Supreme Court.
In the present case, the tribunal is hearing and determining an application for a possession order under s 344(1) of the Residential Tenancies Act. I have already described the procedures and the powers of the tribunal under Division 3 of Part 7 in such applications.
When exercising the jurisdiction of the tribunal under Division 3, and ss 344(1) and 345 in particular, the tribunal determines the legal rights of people to possession of premises according to the provisions specified in the legislation. This is jurisdiction of a civil and judicial nature.[145] It is not regulating access to or use of the premises according to discretionary criteria. The jurisdiction of the tribunal is original jurisdiction under s 40(a) of the Victorian Civil and Administrative Tribunal Act 1998, not review jurisdiction under s 40(b). When exercising jurisdiction in applications under s 344(1), the tribunal is not a public authority under the Charter, except for certain procedural purposes which are not material.
Section 344(1) of the Residential Tenancies Act provides that the applicant 'may' apply to the tribunal for the possession order. By using the word 'may', the provision confers discretion on the director to make or not to make such an application. I don't think anything turns on describing that capacity as discretionary. The critical consideration is that the director can decide whether or not to make the application, and doing so enlivens the jurisdiction of the tribunal. Further, making a decision to apply for a possession order comes within the director's obligation under s 38(1) of the Charter to take action or make decisions compatibly with human rights.
If making the application is itself 'unlawful' under s 38(1) of the Charter, it is not effective to commence a valid application in the tribunal. In consequence, the tribunal has no jurisdiction to determine the application and make the possession order. Let me give my reasons for that conclusion.
There are a number of ways in which the director could have sought to establish that, in making an application for a possession order under s 344(1) of the Residential Tenancies Act, he fulfilled his obligation under s 38(1) of the Charter to take action and make decisions compatibly with human rights. But, as we have seen, he has not done so in the present case. His position is the extreme one that the tribunal cannot look at that matter at all. The director is prepared to offer justification ot the Supreme Court in judicial review proceedings but not to the tribunal when it is actually evicting the people concerned
Section 7(2) of the Charter requires limitations on human rights to be 'demonstrably justified'. As Warren CJ held in DAS v Victorian Human Rights and Equal Opportunity Commission,[146] the onus of establishing that a limitation on a human right is so justified, and hence not a breach of human rights, is on the party seeking to uphold the limitation.[147] In many cases, that requires evidence.[148] The 'standard of proof is high'[149] and requires 'a degree of probability which is commensurate with the occasion'.[150] The evidence must be 'cogent and persuasive'. [151]
Seeking to evict Mr Sudi and his son, and making the application for a possession order under s 344(1), constituted a serious inference with their human rights to family and home under s 13(a) of the Charter. That conclusion is fully justified, indeed demanded, by the decisions on comparable rights of courts of high authority in Strasbourg and the United Kingdom, which I have analysed in detail above.[152] As the director has failed to offer anything in justification of that interference, I am driven to conclude that taking such actions, and specifically making the application, breached those human rights and was 'unlawful' under s 38(1).
The question may now be asked, what jurisdiction does the tribunal possess over an application which was unlawful for the applicant to make? This is not a case in which the application was 'unlawful' because it was lacking in proper form or because some condition precedent in the Residential Tenancies Act was not satisfied. Nor is it only a case in which the making of the application by the director as a public authority might be attacked on judicial review grounds, such as improper purposes. Rather, there is a specific obligation in the Charter, binding on the director as a public authority, to comply with human rights. The director breached that obligation by making the application. The Charter - a law of the Parliament on a subject of fundamental importance to democratic society - specifies with absolute clarity what the consequence is: making the application was 'unlawful'.
I have referred to the principle that an administrative tribunal has jurisdiction to review a decision which is invalid. In other words, a valid application may be made for review of an invalid decision. This principle is not directly relevant here. The tribunal is exercising original (not review) jurisdiction of a judicial (not administrative) nature, and it is the applicant's decision or conduct in making the application which is 'unlawful'. The principle that establishes the tribunal has jurisdiction to review an invalid decision is not the issue in this case.
When the tribunal is exercising its jurisdiction, it can determine all issues of jurisdiction, fact and law which legitimately arise for its determination. That is true for the original jurisdiction of the tribunal, as it is for its review jurisdiction, and it is true for the civil and judicial jurisdiction, as it is for the administrative review jurisdiction.
So, in an application for a possession order under s 344(1), the tribunal must determine whether the applicant is legally 'entitled to possession' and whether the occupants have 'licence or consent'. Those are mixed questions of facts and law. So also, in my view, must the tribunal determine whether the application before it is valid, for only a valid application can properly enliven its jurisdiction. I would also refer to the general jurisdiction of the tribunal in s 446 of the Residential Tenancies Act to hear and determine applications relating to 'any matter arising in relation to a tenancy agreement or a proposed tenancy agreement or premises situated in Victoria'.
On the other hand, the tribunal does not possess a judicial review jurisdiction, neither in its original nor its review jurisdictions. If the issues raised by the director's breach of the Charter in making the application can only be determined in a proceeding for judicial review, they would not be within the tribunal's jurisdiction to determine. I do not think they can only be determined in that way, and they can and should be determined by the tribunal.
Although determining whether a public authority has behaved unlawfully by breaching human rights has some analytical similarities with judicial review, this is not what the tribunal would be doing in determining the issue in these proceedings. The tribunal would be determining whether the human rights standards in the Charter applied to the director, whether the standards were breached by his actions or decisions in this case and whether any breach was justified (unless this was conceded, as it effectively has been here). If the conclusion was that the director did breach the Charter, s 38(1) specifies the consequence that the actions or decisions were 'unlawful'. These are mixed questions of fact and law arising in the course of determining an application within the tribunal's original jurisdiction. It is entirely appropriate for the tribunal to be determining such questions, which come well within its expertise, subject of course to the supervisory jurisdiction of the Supreme Court.
Here is s 39(1) of the Charter:

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The provisions of s 39(1) operate such that a person who may seek a relief or remedy in respect of an act or decision of a public authority on the grounds of unlawfulness, as in a case where a person can commence a non-colourable application for judicial review on the recognised administrative law grounds, may seek that relief or remedy in the relevant process on the additional and free-standing ground that the action or decision was unlawful by reason of s 38(1). As the explanatory memorandum for the Charter makes clear, s 39(1) does not create any new or independent right to relief as a remedy.[153] It adds to the grounds on which relief or remedies may presently be obtained in the exercise of existing rights, without subtracting from or qualifying existing rights, relief or remedies in any way.[154]
Section 39(1) is not in terms of law confined in its operation to the courts, or even to any one court. The heading refers to: 'Legal proceedings'. It would not be interpreted otherwise. It is capable of applying to the tribunal. Further, as an enabling and beneficial provision, it would be interpreted generously and not narrowly.
While s 38(1) operates thus to extend the sphere of human rights protection, it does not at the same time constrain the existing jurisdiction and powers of courts or tribunals in this regard. In particular, it does not qualify the existing jurisdiction of the tribunal to determine issues of fact and law concerning the Charter which legitimately arise in the course of determining applications within its jurisdiction, or (for example) to make declarations with respect to such matters in appropriate cases, as I did in Kracke v Mental health Review Board[155] under s 124(1) of the Victorian Civil and Administrative Tribunal Act, and will in this case. In the present case, the existing jurisdiction of the tribunal allows me to determine the question in issue. I do not need to rely on s 39(1).
Minister for Immigration and Multicultural Affairs v Bhardwaj[156] decided an administrative decision 'involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.'[157] That principle does not operate to prevent the tribunal from exercising its review jurisdiction over such a decision.[158] On the other hand, since I am here exercising original jurisdiction, and the making of the application was unlawful on the part of the director, it might be said the application was no application at all, and hence the tribunal has no jurisdiction to determine it. That, in my view, is the correct conclusion, but the real question is whether the tribunal has the jurisdiction to express it.
The legal consequences flowing from an action or decision being 'unlawful' under s 39(1) of the Charter have not yet been determined. But 'unlawful' is a strong word and is very apt to describe actions taken or decisions made in breach of an obligation to observe human rights. The specific question before me is, what is the consequence, and can the tribunal determine that consequence, when the unlawful act is actually making an application under s 344(1)?
I am troubled by the fact that the unlawfulness arises under the Charter but the application was made under the Residential Tenancies Act. No doubt the making of an application might offend a legal requirement external to the Residential Tenancies Act, yet the application can still be regarded as valid to enliven the tribunal's jurisdiction. Another case may be where a breach of human rights has occurred along the way in making an application for possession, but the making of the application itself was not unlawful. The present application does not come within any of these categories. This is an eviction application the making of which, in itself, was unlawful for breaching human rights.
The tribunal's primary function is to uphold and apply the law, including the Charter. As Blackburn J said in Re Cilli's Objection,[159] an administrative body (for present purposes, this would include the tribunal in its civil and judicial jurisdictions):[160]

[71]

In that case, I also referred to Tranchemontagne v Ontario (Director, Disability Support Program),[162] in which the Supreme Court of Canada stressed the importance of the Ontario Social Benefits Tribunal taking human rights arguments into account. Bastarache J cited[163] with approval the judgment of Sopinka J in Zurich Insurance Co v Ontario (Human Rights Commission),[164] where that judge described human rights legislation as being the 'final refuge of the disadvantaged and the disenfranchised' and the 'last protection of the most vulnerable members of society'.[165] Mr Sudi and his son fall directly into this category. Bastarache J went on to say that 'this refuge can be rendered meaningless by placing barriers in front of it. Human rights remedies must be accessible in order to be effective.'[166] Of the powers of a tribunal, his Honour said that, where it was 'properly seized of an issue', it would be 'extremely rare' for it not to be the one 'most appropriate to hear the entirety of the dispute.' [167]
If the tribunal does not have jurisdiction to decide that making the application for the possession order was unlawful under the Charter, this means that Mr Sudi and his son, and people in their position, must take their case to the Supreme Court of Victoria by way of an application for judicial review.
From the point of view of ensuring equal access to justice, which is an important value and purpose of the Charter, this would be a bad outcome. The tribunal is the most suitable forum at first instance. Its expertise and procedures are especially adapted for the resolution of disputes of this nature. Moreover, it is the only forum which can deal with the entirety of the dispute and determine all the issues at the one time. Finality and complete dispute resolution are fundamental purposes of justice.
The Supreme Court is the highest court in the State of Victoria. It has very significant judicial responsibilities, including the exercise of the jurisdictions which are supervisory of the tribunal. For the court to deal with such applications at first instance, without the benefit of the tribunal's determination, is hardly an effective use of its scarce resources.
Within the scope of its limited statutory jurisdiction, the function of the tribunal is to uphold justice and the rule of law. Unless the governing legislation of the tribunal so required, I cannot see how, holding to that function, the tribunal could make an order for possession in an application under s 344(1) the making of which by the director was 'unlawful' under s 38(1) of the Charter. The tribunal's governing legislation does not so require.
An application which the director has purportedly made under s 344(1) of the Residential Tenancies Act in breach of his human rights obligations under s 38(1) of the Charter, and which is therefore 'unlawful', is not a valid and proper application under s 344(1). It is in law no application at all and does not enliven the jurisdiction of the tribunal to make the possession order sought. The making of the director's application was itself an 'unlawful' act; the jurisdiction of the tribunal cannot be built on an 'unlawful' foundation. In a proceeding under s 344(1), the tribunal cannot just shut its eyes to the unlawfulness of the making of the application, as the director suggests I do. That would rob "unlawful' of the potent force of its natural meaning, create confusion about the consequences of breaching human rights and mock the rule of law, including the human rights protections in the Charter, which parliament has wisely obliged public authorities to respect, on pain of their actions being 'unlawful'. I acknowledge the force of the contrary view, as expressed in decisions of the tribunal.[168] With respect, I cannot accept it.
Further, one of the conditions in s 345(a) which must be satisfied before the tribunal can make a possession order is that the tribunal is satisfied 'the applicant under s 344' is entitled to possession. Where the making of the application by the director was itself unlawful under the Charter, the director cannot be regarded as 'the applicant under s 344' and the tribunal has no jurisdiction to make the order.
It is unnecessary to consider whether s 345(b) is satisfied, given that the director's purported termination of Mr Sudi's 'licence or consent' to occupy the premises was part of seeking to evict him, which I have found to be unlawful under s 38(1) of the Charter for breaching human rights.
The director's application under s 344(1) of the Residential Tenancies Act for an order for possession will be dismissed.

[72]

The Director of Housing is a public authority under the Charter of Human Rights and Responsibilities Act 2006 and obliged by s 38(1) to take actions and make decisions consistently with human rights. It is 'unlawful' for the director to breach that obligation, to which private landlords and property owners are not subject.
Warfa Sudi and his son Shire, who is three years of age, live as a family in a home in premises belonging to the director. They have the human rights which prohibit unlawful or arbitrary interference with their family and home under s 13(a) of the Charter.
This is an application by the director under s 344(1) of the Residential Tenancies Act 1998 for a possession order in respect of the premises. I have found that, in seeking to evict Mr Sudi and his son, and in making the application for the possession order, the director has breached their human rights. I made that finding because the director declined to offer anything in justification of the serious infringement of human rights which his actions constituted. Being in breach of human rights, the director's actions, including the actual making of the application for a possession order, were 'unlawful' under s 38(1) of the Charter.
The director offered no justification because, in his view, it is not within the tribunal's jurisdiction to consider the human rights issues in cases like this. He contended Mr Sudi must take his complaints under the Charter to the Supreme Court. The director is prepared to offer justification to the Supreme Court in a judicial review application, if Mr Sudi and his son can find the wherewithal to make one, but not to the tribunal when it is actually ordering their eviction. I have rejected that approach.
The tribunal can and should address the Charter issues in this case. It has the jurisdiction, the expertise and the procedures for doing so. When issues under the Charter legitimately arise in applications before the tribunal, it should resolve them if it can properly do so. The tribunal is the most suitable forum for determining human rights issues in cases of this nature. It is the only body which has the jurisdiction finally to resolve all of the issues in dispute at the one time, subject to appeal to the Supreme Court.
If the director had chosen to offer submissions and evidence in justification of his actions, there would have been significant issues to consider. In comparable jurisdictions overseas, human rights legislation has not been interpreted so as to impose unreasonable constraints on social housing providers in making decisions about the management of their scarce housing resources.
The tribunal's jurisdiction to make a possession order is enlivened by the making of an application under s 344(1). I think that means a valid application which has been properly made. Under s 345, its jurisdiction to make such an order depends on the director being 'the applicant under s 344'. I think that means an applicant who has properly made a valid application.
As the director's making of the application for a possession order was itself an 'unlawful' act under the Charter, it was not a valid application which was properly made under s 344(1). The jurisdiction of the tribunal cannot be built on an 'unlawful' foundation. Being unlawfully made by the director, in law the application was no application at all. The application was ineffective to enliven the jurisdiction of the tribunal, except to the extent necessary to determine that question. Further, as the director did not properly make a valid application, he cannot be regarded as 'the applicant under s 344' for the purposes of s 345(a). The tribunal has no jurisdiction under that provision to make the order.
The director's application for a possession order is not within the jurisdiction of the tribunal and will therefore be dismissed. There will be a declaration and order accordingly.

At a glance

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Before

Source

Judgment (164 paragraphs)

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Legislation Cited (7)

Cases Cited (4)

Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 (31 March 2010)