1. Section 288 of the Act enables a rooming house owner to give a resident a notice to vacate without specifying a reason for giving the notice. The notice must specify a termination date that is not less than 120 days after the date on which the notice is given. However, subsection 289(1) states that a notice under section 288 is of no effect if it is given in response to the exercise, or proposed exercise, by the resident of a right under the Act.
2. Subsection 289(2) of the Act provides that a person is not entitled to apply to the Tribunal challenging the validity of a notice under section 289, after the end of 60 days after the date on which the notice was given.

Issue 1: Did the resident make an application to VCAT within 60 days of the date on which the notice to vacate was given?

1. Mr Fitzgerald, on behalf of YWCA Housing, submitted that subsection 289(2) of the Act applied to the circumstances of this case, because the resident's application to VCAT was made one day after the relevant time frame had expired.
2. Mr Fitzgerald correctly identified that the 60 day period begins on the day that the notice to vacate is given to or served on the resident. Unless otherwise proven, service is deemed to occur at the time when the notice to vacate would be delivered in the ordinary course of the post, in accordance with subsection 49(2) of the Interpretation of Legislation Act 1984.
3. Mr Fitzgerald provided information from the Australia Post website which he submitted showed that Australia Post's current delivery estimates, where post is sent within metropolitan areas or within the same city, is two business days. As the notice to vacate in this case was posted on Wednesday, 15 February 2017, it would be taken to have been received on Friday 17 February 2017. On that basis, the commencement date for the 60 day time period set out in subsection 289(2) was 17 February 2017 and the application to the Tribunal was made more than 60 days later.
4. Mr Vincent submitted that a document sent on day 1 (where that day is Tuesday to Friday) is deemed to be given six business days after day 1, that is, on day 7. The postal period is therefore seven days, and the notice to vacate in this case is therefore deemed to have been served on 21 February 2017. Therefore lodgment of the resident's application to the Tribunal occurred within the relevant 60 day time frame.

1. Information in VCAT's Annotated Residential Tenancies Act and on the VCAT website states that if a 120 day notice to vacate is posted from Tuesday to Friday, then the minimum number of days that must be allowed to calculate the earliest termination date is 128. This period allows for the day that the notice is sent, a maximum number of business days during which the notice would ordinarily be delivered by Australia Post within the state of four days, the 120 clear days' notice and the termination date specified on the notice.
2. Mr Fitzgerald submitted, however, that the notice to vacate would have been delivered within two days in the ordinary course of the post, rather than four days. He provided information from the Australia Post website in support of that submission. The material he provided appeared to me however, to indicate that parcel post is delivered within two business days. An examination of the Australia Post website indicated that registered post can take between two and six days for delivery depending on the postal destination. Under the heading "Delivery areas within Australia" the website states that for regular (that is, non-priority) letters, the delivery time frame is up to three days in metropolitan areas and up to four days to country areas. Letters sent interstate can take up to six days for delivery.
3. In the present matter, the letter was being posted in, and delivered to, a metropolitan area, so that the maximum time for delivery, according to the Australia Post website, is three days. The notice was posted on 15 February 2017. I concluded that the resident was deemed to have received the notice to vacate on the third business day after this date in accordance with section 49 of the Interpretation of Legislation Act 1984, that is, on Monday 20 February 2017.
4. The parties' representatives assumed that the application to the Tribunal was made on 19 April 2017, but it was in fact date stamped as having been received by the Tribunal on 20 April 2017. That was the 59th day after the deemed receipt of the notice to vacate. Accordingly, I found that Ms Gholinezhad made her application to VCAT, challenging the validity of the notice to vacate, within 60 days of having been given that notice.

Issue 2: Was the rooming house owner's notice to vacate invalid?

1. Mr Vincent submitted that the notice to vacate in this case was of no effect, because it was given to Ms Gholinezhad in response to an exercise or proposed exercise of a right under the Act. He provided a written submission in which he stated that the word "right" in section 289 of the Act should be interpreted liberally, taking into account the Charter of Human Rights and Responsibilities 2006, the Interpretation of Legislation Act 1984 and various authorities supporting the proposition that the Act needs to be interpreted in a manner favorable to the resident. He submitted that the right that the resident exercised or proposed to exercise in this case, was an enquiry she made to YWCA Housing for information about her rent and how it was calculated. He also submitted that the notice to vacate was given in response to that enquiry.
2. This submission was based on the following sequence of events. By way of letter dated 8 April 2016, YWCA Housing issued a notice of a proposed rent increase to Ms Gholinezhad, proposing a rent increase from $170.60 per week to $229 per week. On 20 July 2016, YWCA Housing advised Ms Gholinezhad that they had received income documents and her rent would be $170.60 effective from 20 June 2016. The Tenants Union, on behalf of Ms Gholinezhad, then made enquiries with YWCA Housing as to how the rent of $170.60 was calculated.
3. In November 2016, YWCA Housing received information from Centrelink showing that Ms Gholinezhad received Status Resolution Support Services payments. Those payments are made to non-citizens whose immigration status has not yet been determined. Following receipt of that information, the rent was revised to $134 and that rent reduction was backdated. However, YWCA Housing also requested further information from Ms Gholinezhad to show that she was an Australian citizen or permanent resident. In response, Ms Gholinezhad provided YWCA Housing with a copy of her temporary protection visa. Subsequently, Ms Gholinezhad was given the 120 day notice to vacate.
4. Mr Vincent argued that the right to enquire or make a complaint about rent was a right being exercised under the Act. Making that enquiry was a necessary first step before making a formal complaint to the Director of Consumer Affairs under section 102 of the Act. The notice to vacate was issued as a result of or in response to that enquiry. He also submitted that YWCA Housing must have been aware of Ms Gholinezhad's visa status when she entered into occupation and that it was merely convenient for the rooming house owner to now assert they were previously unaware she did not meet their eligibility criteria.
5. Mr Fitzgerald submitted that the resident had failed to identify a right under the Act that could form the basis of a challenge to the notice to vacate. Further, the reason for the issuing of the notice to vacate was that the resident was ineligible for social housing, because she was not an Australian citizen or permanent resident.

1. The requirements relating to a challenge to a 120 day notice to vacate were considered by me in Gillen v Zullaphella Pty Ltd [2016] VCAT 1735. I stated in that case that:

It is quite clear that, pursuant to subsection 266(2), the decision maker must consider two matters - firstly, whether there has been an exercise, or proposed exercise, of a right under the RT Act by the tenant; and secondly, whether the notice to vacate was given by the landlord in response.

Ms Cafarella urged me to interpret the phrase "exercise...of a right under this Act" taking into account the matters set out in the Charter, such as the tenant's right to non-arbitrary interference with his home. She argued that rights under the RT Act needed to be interpreted broadly, as the RT Act in fact said very little about rights.

Whilst the Charter is relevant to interpreting a provision of the law if the terms of that provision are unclear, in this case the law is not ambiguous in that subsection 266(2) clearly requires an exercise or proposed exercise of a right under the RT Act to be identified, before a notice to vacate can be regarded as of no effect under subsection 266(2). It is not enough merely to show that the relevant notice to vacate has been issued in response to some action of the tenant generally that the landlord may be unhappy about.

1. It is difficult to accept that a mere enquiry relating to rent is sufficient to constitute an exercise of a right or even a proposed exercise of a right under the Act. What occurred in this case was, after all, merely an enquiry. Further, the enquiry was about the rental rebate Ms Gholinezhad was entitled to, as a social housing resident, based on her income. It was not an enquiry about the market rent for her room, which was the sort of enquiry that might give rise to a subsequent request by a resident for an investigation of the rent by the Director of Consumer Affairs under section 102 of the Act. I was not satisfied that, on the facts of this case, the resident had exercised a right or proposed to exercise a right under the Act, even if the term 'right' is interpreted broadly.
2. Further, the evidence established that the reason Ms Gholinezhad was given the 120 day notice to vacate was because YWCA Housing had become aware that she did not meet the relevant guidelines for accommodation through their organization. The issuing of the notice to vacate had nothing to do with the rent enquiry; that was merely the means by which the relevant information about her residency status came to light.
3. Therefore, I was not satisfied that the notice to vacate was given "in response" to the rent enquiry, which in my view would require me to conclude that the notice to vacate was issued as a reaction to, or in retaliation to, the enquiry about rent. In this case, the notice to vacate was issued in response to the evidence provided by Ms Gholinezhad to YWCA Housing that she held a temporary protection visa, and not a permanent resident visa.
4. In conclusion, I was not satisfied that Ms Gholinezhad had demonstrated the notice to vacate issued by YWCA Housing on 15 February 2017 was given to her in response to an exercise or proposed exercise of her rights under the Act. Accordingly, I dismissed Ms Gholinezhad's application.