The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.

1. Kiefel J in the High Court decision of Shi v Migration Agents Registration Authority[26] (Shi's Case) said:

[58] The object of the review undertaken by the Tribunal has been said to be to determine what is the"correct or preferable decision". Preferable is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense.[27] (footnotes omitted)

1. The Tribunal is authorised and required to review the actual decision, not the reasons for it.[28]
2. The Tribunal concurs with the respondent's submission[29] that in its determination it should have regard to the legislative scheme, the HA Act, the Program and the Guideline as well as the particular circumstances of the applicant's case as found in the material before the Tribunal on 14 December 2016. As Smithers J said in Minister for Immigration and Ethnic Affair v Pochi[30] (Pochi):

Further in its proceedings [the Tribunal] is obliged to act judicially, that is to say with judicial fairness and detachment. It is subject to the same general restraints to which the administrative officer whose decision is under review was subject, namely that the relevant power must not be exercised for a purpose other than that for which it exists . . . that regard must be had as to the relevant considerations, and that matters absolutely apart from the matters which by law ought to be taken into consideration must be ignored", per Bowen C.J. and Deane J. in Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR, at p 589 . Thus natural justice must be afforded to the applicant.

1. The Tribunal is also obliged to interpret the relevant legislative provisions, as far as is possible, consistently with the HR Act and in the context of its administrative review jurisdiction and in making this decision the Tribunal is obliged to give proper consideration to the applicant's human rights, specifically in this matter not to have her home arbitrarily interfered with.
2. The Tribunal turns to the issues for determination.

Whether subclause 25(8)(a) of the Program operates in such a way to require the respondent to backdate the rent rebate to 29 October 2015?

1. Subclause 25(8) of the Program provides for four separate dates of effect of a rent rebate. The applicant contends that the respondent has been operating under a misapprehension as to the effect of subclause 25(8) and this clause sets out a 'schema' to determine the date from which the rent rebate takes effect with the earliest date in subclause 25(8)(a), or (b) or (c) taking precedence unless a date earlier than any in subclause 25(8)(a), or (b) or (c) is sought in which event it is necessary for the respondent to exercise his or her discretion under clause 25(8)(d). The applicant contends that this interpretation is most consistent with section 139 of the Legislation Act 2001 and the objects of the HA Act.
2. Section 139 of the Legislation Act provides:
   • (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
3. The first two of the main objects in subsection 6(1) of the HA Act are:

(a) to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and

(b) to facilitate the provision of housing assistance for those most in need; and

...

1. The applicant also submitted that the Tribunal is required to interpret the Program consistently with section 30 of the HR Act.
2. The applicant submits that a consideration of section 12 of the HRA, that a person has the right not to have their home interfered with arbitrarily, and the objects of the HA Act requires subclause 25(8) of the Program be read so that a person who is eligible for a rent rebate receives it over the maximum possible timeframe as if the period of rental rebate was not maximised it would result in arbitrary interference with a person's home. Any other interpretation, the applicant contends, exposes vulnerable public housing tenants like the applicant to being charged rent at an arbitrary rate that is far beyond what they can afford.
3. The Tribunal will return to the consideration of the HR Act later in the decision.
4. The respondent contends that subclause 25(8) of the Program should be read in its plain and ordinary meaning, that the clause is absent in hierarchy and that the date of effect is one of a number of dates, as provided for in (a) or in (b) or in (c) or in (d) of subclause 25(8).
5. Having considered the objects in section 6 of the HA Act the Tribunal is not satisfied that the objects support the applicant's contention that subclause 25(8) has a hierarchy. While one of the main objects of the HA Act requires the maximisation of opportunities for everyone in the ACT to have access to housing that is affordable, subsection 6(2) of the HA Act requires that the person administering the Act consider the resources available to him or her. It states:

...

(2) A person administering this Act must have regard to the objects of the Act to the maximum extent practicable considering the resources available to the person.

1. The Tribunal has noted the statement by Cole JA in the decision of the NSW Court of Appeal in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd[31] (footnote omitted):

Further, whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power.

1. The language in subclause 25(8) of the Program is clear. The Tribunal concurs with the respondent that in this case the objects do not command a particular outcome of exercise of discretionary power.
2. If the Tribunal is wrong and there is a hierarchy in subclause 25(8) of the Program the applicant's claim is that she would be eligible for the earliest of the alternate dates in subclause 25(8), namely (a) as she had a previous rent rebate which had come to an end.
3. The respondent contends that the previous rent rebate did not 'expire', rather it was 'revoked' by the respondent pursuant to clause 26 of the Program and, therefore, subclause 25(8)(a) does not apply.
4. The Tribunal does not agree with the interpretation of 'expiry' in subclause 25(8)(a) sought by the applicant, namely that a 'revocation' of a previous rent rebate is equivalent to an 'expiry' of the rent rebate. Subclauses 25(6) and (7) of the Program provide for a rent rebate period of six months or such other period decided by the respondent and for the respondent to extend, from time to time, by up to six months the period of rent rebate. Such decisions are subject to the respondent's discretion in subclause 26(5) of the Program to suspend, amend or revoke the rent rebate. 'Revoke' is defined in the Oxford English Dictionary as 'rescind', withdraw', 'cancel'. 'Expire' is defined in the same Dictionary as 'the end of the period for which something is valid'. If the respondent was required to do as the applicant contends, to backdate the rent rebate to the date of revocation of the previous rent rebate, this would unreasonably fetter the respondent's discretion to revoke a rent rebate when not satisfied that the applicant is eligible and then to grant a new rent rebate at a future point in time when satisfied that the applicant satisfies the eligibility criteria.
5. The respondent's letter to the applicant dated 29 October 2015 advised her that her rental rebate "has been cancelled from 29 October 2015." The respondent stated[32] in the further submissions "that the rent rebate should have been revoked on 14 November 2015." While the earlier letter from the respondent to the applicant dated 24 September 2015 stated "Your current rental rebate expires on 14 November 2015..." the Tribunal is satisfied and finds that the rent rebate was cancelled or revoked by the respondent and that it did not expire.
6. For the above reasons, the Tribunal finds that subclause 25(8)(a) of the Program does not operate to require or compel the respondent to backdate the rent rebate to 29 October 2015 or to the date when the rebate was revoked.

Is the applicant required to prove her circumstances are 'unusual or out of the ordinary' in order for the respondent to backdate the rent rebate pursuant to subclause 25(8)(d)?

1. This requires the Tribunal to consider the applicant's contentions in [55(b)] above.
2. The applicant submits that the respondent can exercise his or her discretion under subclause 25(8)(d) of the Program even where such circumstances do not exist. To the extent that the Guideline purports to limit the respondent's discretion in subclause 25(8) of the Program, the applicant says that limitation should be read down so as to have no effect on the Tribunal's decision.
3. The applicant relies on subsection 21(1) of the HA Act which empowers the respondent to issue guidelines "outlining procedures for the management or operation of approved housing assistance programs", subsection 21(2) of the HA Act which requires that the guidelines "must not be inconsistent with the Act (including approved housing assistance programs)" and subsection 43(1) of the Legislation Act 2001 which states:

A statutory instrument is to be interpreted as operating to the full extent of but not to exceed, the power given by the Act or statutory instrument under which it is made (the authorising law).

1. The applicant contends that the Guideline, read literally, states that the particular circumstances would 'include' circumstances that are unusual or out of the ordinary; not that the particular circumstances 'require' that they are unusual or out of the ordinary and the effect of the Guideline is only to provide further examples of what might constitute circumstances under subclause 25(8)(d) whereby a rebate could take effect from an earlier date.
2. The applicant also relies on the HR Act and submits having regard to the objects of the HA Act and the respondent's obligations under the HR Act the respondent is, nonetheless, empowered to backdate an application for rent rebate where unusual or out of the ordinary circumstances are not considered to exist.[33] The Tribunal will return to consideration of the HR Act later in the decision.
3. The decision under review is the respondent's decision to accept the recommendation of HATRP. The respondent submits[34] and the Tribunal concurs that the applicant's submissions invite the Tribunal to go beyond that decision and to examine the circumstances of the original decision as to whether the Guideline is consistent with the HA Act and the Program. In an earlier tribunal decision of Zhang & Anor v Commissioner for Social Housing in the ACT[35] the tribunal considered the 'Director Housing ACT - Instruction' relating to 'Management of Sponsored Migration Applications for Housing Assistance'. That tribunal said at [137]:

The Tribunal accepts that the validity of the Instruction is not a matter for consideration by the Tribunal. However, in the Tribunal's opinion, although the Instruction did reflect a change in the respondent's policy, it did not involve any change to the proper interpretation of the HA Act or HA Program.

1. The role of the Tribunal is not to decide how the respondent's discretion to enact the Guideline and prescribe its terms should be exercised. The validity of the Guideline is not a matter for consideration by the Tribunal.

1. The respondent is permitted to issue guidelines pursuant to section 21 of the HA Act for the management of approved housing assistance programs. The Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operation Guideline 2008 (No 1) is a notifiable instrument. The Guideline, which has been issued, states that its Purpose is "To provide guidance on clause 25 - Rent rebate." The Tribunal is satisfied and finds that this Guideline was put into effect to outline the management of clause 25 in the Program and, specifically, clause (8) of the Guideline was put in to effect in order to determine the 'Date of effect' or appropriate date to which a rental rebate may begin.
2. Clause 8 of the Guideline states:

Subclause 25(8) specifies the date of effect for granting a rent rebate. This includes provision for a date earlier than would normally apply where particular circumstances exist. There would include circumstances that are unusual or out of the ordinary, such as:

• where a tenant was unconscious in hospital and could not contact Housing ACT to make them aware of their situation; or
  • where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member.

1. The respondent told the Tribunal that the 'normal' date of effect for granting a rebate was the date of the application. Clause 8 of the Guideline sets out the circumstances when a rent rebate may be backdated to a date earlier than the date of the application where particular circumstances exist. Clause 8 goes on to state that this includes circumstances that are unusual or out of the ordinary and sets out two examples.
2. The applicant contends that this Guideline is inconsistent with the HA Act when one considers that the HA Act objects are, inter alia, to maximise the opportunities for everyone in the ACT to have access to housing that is affordable. The applicant contends that, without a finding of unusual or out of the ordinary circumstances, her actual circumstances between 28 April 2015 and 22 March 2016 are deemed irrelevant and she is required to pay full market rent in circumstances where it was manifestly unaffordable.
3. The applicant further contends that:

...this departmental guideline has been applied inflexibly and in a manner that narrows the scope of the discretion conferred upon the commissioner, and now the tribunal by law, and we say that the commissioner has conflated the broad discretion afforded to it by the law with the test in the guideline. The guideline is not co-extensive with the discretion...there is no evidence that Housing was prepared to consider cases that fell outside the policy but within the discretion of the Act.[36]

1. The applicant submits that the respondent's decision paid no regard to the fact that she had no income, that she was not in a position to engage with her housing manager and if the requested back date of the rent rebate was denied the very serious consequences for her were that she would have rent arrears of approximately $6,500 which she was never in a position to pay and which would lead to her facing eviction. The applicant submits the respondent's decision was non-responsive to the issues put to the respondent on behalf of the applicant by Canberra Community Law and focussed on the fact that the applicant did not engage with her housing manager.
2. The Tribunal is satisfied that the Guideline does not operate to fetter the respondent's discretion; rather it provides guidance to when such a discretion should normally be exercised. Subclause 25(8)(d) of the Program gives the respondent a discretion when determining the date from which a rental rebate takes effect. The Tribunal is satisfied that the Guideline serves to elucidate the policy objectives in accordance with which the respondent acts in exercising his or her discretion under subclause 25(8)(d) and in accordance with the objects of the HA Act and the Program.
3. For these reasons the Tribunal does not accept the applicant's contentions that the Guideline is inconsistent with the HA Act and the Program or that the terms of the Guideline do not require her to demonstrate that her circumstances are unusual or out of the ordinary.

1. The applicant contends that in making the decision to accept the recommendation of HATRP not to backdate the rent rebate the respondent contravened both subsections 40B(1)(a) and (b) of the HR Act.
2. Canberra Community Law had specifically referred in its letter to the respondent dated 6 June 2016 requesting the second level review that, as a public authority, the respondent was required to take into account the applicant's human rights and, in particular, her right under section 12 of the HR Act not to have her home arbitrarily interfered with. The HATRP report noted:

Ms McCormick further stated that Ms Miller has a right under section 12 of the Human Rights Act 2004 not to have her home arbitrarily interfered with. Ms McCormick explains that taking steps to evict someone on a debt largely accrued as a failure to provide an income statement, is an arbitrary interference on her home. [37]

1. Apart from noting the applicant's solicitor's submission (in the previous paragraph) the respondent did not refer to the HR Act or to section 12 in its Recommendation[38], Reasons for Recommendation[39] or in its decision letter to the applicant dated 29 June 2016.[40] The applicant asserts that there is no evidence, either formally by reference to the HR Act or by implication, in the documents provided that the respondent gave any consideration to the applicant's relevant human rights or the effect that this decision could have to her security of her home in making the reviewable decision. The Tribunal concurs.
2. The respondent is a 'public authority' within the meaning of subsection 40(1) of the HR Act and pursuant to section 30 of the HR Act it is subject to the duty to give proper consideration to relevant human rights when making its decisions.
3. The Tribunal, standing in the shoes of the reviewable decision maker, is required to give proper consideration to the applicant's human rights when making its decision, specifically her right under section 12(a) of the HR Act not to have her home interfered with arbitrarily.
4. For what constitutes an 'interference' with the right to the home the applicant referred the Tribunal to the VCAT decision of Director of Housing v Sudi (Sudi) which concerned proceedings under the Victorian Residential Tenancies Act 1997 and the Charter of Human Rights and Responsibilities Act 2006 and where Bell J said:

...what amounts to an 'interference'...is approached in a 'simple and untechnical' manner. This is Manfred Nowak ... every invasion of that sphere paraphrased by the term "home" that occurs without the consent of the individual affected ... represents interference. Evicting or seeking to evict someone living in social housing is interfering with their human rights relating to their home. Any attempt to do so, directly or indirectly or by process of law, constitutes such interference...[41]

1. For determining whether such an interference is 'arbitrary' in human rights terms the applicant referred the Tribunal to the decision of the Victorian Supreme Court in Patrick's Case [42] and to two tribunal decisions, Commissioner of Social Housing v "A" (CSH & A)[43] and Commissioner for Social Housing and Jones (CSH & Jones).[44] In Patrick's Case Bell J said:

85. I therefore conclude that the human right...not to have your privacy, family, home or correspondence 'arbitrarily' interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.

1. In CSH & A Member Daniel (as she then was) said, in proceedings under the Residential Tenancies Act 1997:

...when a public authority brings an application under the RT Act, it is open to the tenant to argue that the making of the order would be disproportionate or unreasonable such as to amount to an arbitrary interference with their home, and that, given the nature of the particular provision of the RT Act relied upon and the individual circumstances of the case, the discretionary power to make the order should not be exercised. Where a substantive argument is raised, it is for the applicant lessor to satisfy the tribunal that, after a consideration of all the circumstances of the case (including whether or not the orders sought by the lessor impermissibly contravene the tenant's rights under the HR Act), the orders should be made.

1. Senior Member Lennard referred, with approval, to the above passage in Commissioner for Social Housing & Jones, another proceeding under the Residential Tenancies Act 1997.
2. In the present case the applicant has argued that the respondent's statutory role and the respondent's obligations under the HR Act and the objects of the HA Act, empowered the respondent to backdate a rent rebate even where unusual or out of the ordinary circumstances are not found to exist.
3. The applicant contends that:
   • (a) to interpret clause 25(8) in a way that does not maximise the period over which a rent rebate is provided would be an arbitrary interference with her home under section 12(a) of the HR Act. The applicant relies on the interpretation of 'arbitrary' as 'unreasonable' or 'disproportionate' in Patrick's Case and the earlier tribunal decision in CSH & A; and
   • (b) the failure to backdate her rent rebate amounts to an interference with her home; it is unreasonable and disproportionate to the legitimate aim sought and has placed the applicant at real risk of eviction.
4. The respondent submits that the respondent gave proper consideration to the applicant's human rights in making his decision.[45]

1. The right the applicant relies on is her right not to have her home interfered with unlawfully or arbitrarily as set out in section 12(a) of the HR Act.
2. The respondent denies that section 12 of the HR Act will prima facie be engaged by a decision of the respondent to accept a recommendation of HATRP not to backdate a rent rebate and submits that a decision in relation to whether to accept, vary or reject a recommendation of HATRP does not, on its face, amount to an interference with the applicant's home.[46]
3. Whether section 12 of the HR Act is engaged by a decision in relation to rent rebate will depend upon the effect of that decision on the tenant's particular circumstances.
4. The applicant's arrears of rent at the time of the reviewable decision were $9,356.11.[47] At the commencement of the tribunal hearing the parties reached agreement that the applicant's arrears of rent were $6,507 based on market rent, and if the rent rebate was backdated as the applicant sought the applicant would be in credit in the amount of $1,603. It is an inevitable and stark conclusion that if the rebate is backdated, as the applicant seeks, that would have a material effect on whether eviction action is pursued.
5. The Tribunal finds that the applicant's human right in section 12(a) of the HR Act is engaged.
6. The respondent submits, if the Tribunal finds that the applicant's human right in section 12(a) is engaged, the applicant's right under that section is not absolute and is subject to reasonable limitations pursuant to section 28 of the HR Act which are demonstrably justified in a free and democratic society.
7. The respondent argues that the HA Act and the Program establish a scheme for the provision of rent rebates and the objects of the HA Act and the Program clearly contemplate there must be some limits to the provision of housing assistance, including rent rebates.
8. In this regard the respondent relies on the words "considering the resources available to the person" in subsection 6(2) of the HA Act as indicating that the legislature recognises that there must be a limit to the housing assistance the respondent can provide and the use of the word 'eligible' in the Program's objects - "providing assistance to eligible people in the Territory who are most in need" - as indicating that the legislature intended that rent rebates are only provided to people who satisfy certain criteria in the housing assistance scheme.

Are these limits reasonable for the purpose of section 28 of the HR Act?

1. In determining this question the Tribunal has considered the ACT Supreme Court decision of Hakimi[48] in which Refshauge J set out and adopted the Attorney-General's submissions in that matter in relation to the correct approach to issues raised by Part 5A of the HR Act, 'Obligations of Public Authorities', where a limitation is imposed by the decision on any of the rights protected under Part 3 of the HR Act. Included in the questions the Attorney- General said should be asked were the following questions:

3. Is the limitation reasonable, insofar as it can be demonstrably justified in a free and democratic society having regard, inter alia, to the factors set out in s 28(2) of the Human Rights Act? To put it another way, is the limitation proportionate?

4. Even if the limitation is proportionate, where the matter involves making a decision, did the decision-maker give proper consideration to the protected right?

1. In considering proportionality it is necessary to balance the general interest against the interest of the individual. The interference cannot have a disproportionately severe effect on the person to whom it applies.
2. The respondent says any limitation is reasonable and proportionate because the statutory scheme provides a clearly defined process as to the way in which rent rebates are to be applied for, considered and granted; it takes into account the needs of other public housing tenants and the commissioner's limited resources; the commissioner's decision was consistent with his statutory obligations which included administering the Public Housing program in a way that accords with the objects of the HA Act and this is a legitimate end which justifies the limitation on the applicant's rights.[49]
3. The Tribunal is satisfied and finds that:
   • (a) the statutory scheme provides a clearly defined process as to the way in which rent rebates are to be applied for, considered and granted; and
   • (b) the scheme takes into account the needs of other public housing tenants and the Commissioner's limited resources.
4. In considering whether the respondent's decision was consistent with his statutory obligations to administer the public housing program in a way which accords with the objects of the HA Act and whether this demonstrated a legitimate end which justified the limitation on the applicant's rights, the Tribunal is troubled by the fact that even if it were to find that the limitation was proportionate, given that the matter involved the respondent making a 'decision', the Tribunal cannot be satisfied, from all of the material before it, that the respondent gave proper consideration to the applicant's protected right in the HR Act. There is simply no evidence that would enable the Tribunal to find that the respondent considered the possible impact of the decision on the applicant's human right under section 12 of the HR Act.
5. In the Victorian Supreme Court decision of Castles v Secretary, Department of Justice[50] (Castle) Emerton J said:

... The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a 'common or garden' activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration should not involve formally identifying the 'correct' rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involved balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

While I accept that the requirements 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, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.

1. In considering the impact of the decision on the applicant's human rights and the implications for her and the respondent's countervailing interests or obligations in this review, the Tribunal cannot be satisfied, from the material before it, that the impact and implications would be slight. The respondent was aware at the time of the HATRP recommendation that on 26 February 2016 it had made an application to the tribunal in its residential tenancies jurisdiction seeking an unconditional termination and possession order with effect as a warrant for eviction.[51] The letter to the respondent from Canberra Community Law dated 22 March 2016 referred to the eviction proceedings in the tribunal.[52] The Tribunal cannot be satisfied from the material before it that the respondent did take into account all of the applicant's circumstances. To have done so it would have had to have demonstrated that it had considered her rights under the HR Act.
2. Nor could the Tribunal find, in the documents provided, any material which showed that the respondent understood, in general terms, which of the rights of the applicant affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. It appears to the Tribunal that consideration of the applicant's human rights was not a part of the respondent's decision making process notwithstanding, as Emerton J said in Castle, that such consideration is intended to become 'a common garden activity for persons working in the public sector, both senior and junior'.
3. In this regard, the Tribunal notes the following statement by Refshauge J in Hakimi:

95. Thus if the respondent had failed to advert to the human rights ... this may have justified curial intervention.

1. The Tribunal finds that the link between the decision made under clause 31(4)(b) of the Program and the applicant's rights under section 12(a) of the HR Act was not tenuous as argued by the respondent; it was causal. If the decision not to backdate the rent rebate had not been made the applicant would be in credit with her rent and, in all likelihood no longer facing the eviction proceedings in the residential tenancies jurisdiction of this tribunal.
2. In these circumstances, the Tribunal finds that the respondent's decision to accept the HATRP recommendation and not to backdate her rent rebate was not proportionate to achieve the legislative aim; in the circumstances it clearly constitutes an unreasonable or arbitrary interference with her right to home in section 12(a) of the HR Act. This interference was not in accordance with the provisions, aims and objectives of the HR Act and, considering all of the circumstances, it was unreasonable. It was not the correct or preferable decision.
3. For these reasons, the Tribunal determines that the correct or preferable decision is to set aside the decision to accept the HATRP recommendation and to backdate the rent rebate to 14 November 2015. This will recognise the applicant's human right to home under section 12.
4. Given the Tribunal's decision above, it is not strictly necessary for the Tribunal to consider the second limb of the applicant's claim under the HR Act. However, as it was raised and the parties' dealt with it in their detailed written and oral submissions the Tribunal has considered it.
5. The applicant argues[53] that a decision that insists that the applicant be charged market rent for a period of time when she has no income and then to use the accrued rental arrears in that period as the basis for an eviction application also constitutes an arbitrary interference with the applicant's home and should be set aside by the Tribunal.
6. The respondent says market rent was charged as subsection 22(1) of the HA Act mandates that if housing is being rented to an entity under an approved housing assistance program, the entity must be charged market rent for the housing. Subsection 22(3) of the HA Act defines market rent. The HA Act requires that the term 'rent' in a tenant's residential tenancy agreement must refer to market rent. When the applicant commenced her tenancy, she entered into a contract with the respondent in terms set out in Schedule 1 of the Residential Tenancies Act 1997 which provided that the rent she was to be charged for occupation of the tenancy was market rent. The tenancy agreement set this rent as $390.00. The applicant was contractually obliged to pay market rent.
7. The Tribunal concurs with the respondent's submissions and is not satisfied that the respondent charging market rent was unreasonable or disproportionate. The Tribunal finds that charging market rent does not amount to an arbitrary interference with the applicant's right to home under the HR Act.

Are the applicant's circumstances unusual or out of the ordinary

1. Given the Tribunal's decision in [122] above it is also not necessary for the Tribunal to consider this issue. However, as it was raised and the parties dealt with it in their detailed written and oral submissions the Tribunal has considered it.
2. While the applicant primarily contends that she is not required to demonstrate that her circumstances are 'unusual or out of the ordinary' she nonetheless contends that the Tribunal can be satisfied that her circumstances are 'unusual or out of the ordinary' because of the combination of (a) her personal difficulties and (b) the respondent's representative's failure to appropriately deal with her rebate application or to advise her how she might satisfy the respondent's request for income information.
3. In the applicant's witness statement she states the she is presently incarcerated and is actively seeking to be released on bail. If she is evicted from the premises she will face an extended period of incarceration as she will not have suitable accommodation to which she can be bailed. She then states:

I sincerely wish to re-enter the community after my difficult year [29 April 2015[54] - 4 February 2016[55]] of battling with multiple sclerosis ('MS') [which was diagnosed in 2014], handling police raids [which began in February 2015], and the removal of my daughters by Care and Protection Services ('CYPS') [in August or September 2015].

1. She contends that these personal and unanticipated upheavals in her life in 2015/2016 resulted in her not managing her affairs. She said she did not feel equipped to deal with the rigorous demands of activities testing required under her Newstart job plan. She experienced periods of weeks in bed from her MS. She had claimed Newstart Allowance on 9 September 2015. On 23 September 2015 this claim was rejected as the applicant had failed to provide requested documentation, which she did not have.
2. The applicant did submit an application for rental rebate on 22 September 2015. When Centrelink advised the respondent at that time they could not, using the PICC form, verify the applicant's income, the respondent did not process the rebate application, instead writing to the applicant on 24 September 2015 requesting her to provide an income statement from Centrelink.
3. The Homenet notes corroborate the applicant's claim that she had told her Housing Manager on previous occasions that she was not in receipt of Newstart Allowance. The applicant submits it should have been apparent to the respondent that she was struggling to meet Centrelink's requirements for her to receive payment and without Centrelink income she could not provide the respondent with the requested Centrelink income statement.
4. The respondent's Homenet notes[56] show that after the applicant's Centrelink payments were cancelled effective from 29 April 2015 the Housing Manager had spoken with the applicant on 20 May 2015, 2 September 2015, 16 October 2015 and 7 December 2015 and she had informed him on each of these occasions that she was not receiving Centrelink. On 20 July 2015 she told her Housing Manager that she has been ill and that was why she was not made rental payments since 20 June 2015. By the time the respondent had written to the applicant on 24 September 2015 the applicant had already informed the respondent twice that she was not in receipt of Newstart Allowance and that she had been ill.
5. There was no evidence from the respondent which may have assisted the Tribunal to understand why no action was initiated by the applicant's Housing Manager during the conversations in May 2015 or September 2015 or October 2015 or December 2015 to advise the applicant about how she might satisfy the respondent's request for income information. The applicant should have been advised about the Program and, in particular, subclause 11(3) which provided for the respondent to deem her as being in receipt of Newstart Allowance. This should have enabled her rental rebate to be processed.
6. The applicant contends that "it would have been obvious to the Commissioner that Ms Miller was not in a position to provide such (an income) statement."[57] While acknowledging that the applicant was sometimes not responsive to attempts to contact her the applicant contends that on the occasions when there was contact (see [133] above) her rental rebate was not raised with her and, at no time after the rebate was cancelled, did the respondent tell her that she was being charged market rent, an increase of nearly $300 per week, or suggest how she might resolve the situation.
7. The Tribunal notes that while in the conversations with the applicant recorded in the Homenet notes the respondent may not have said that she was being charged market rent, the respondent did refer to the full weekly rent of $410.00 in its two letters to the applicant on 24 September 2015 and 29 October 2015.
8. The applicant did, however, attend a meeting with a Regional Manager and a Senior Manager of the respondent in the respondent's office on 30 November 2015 and the record of that meeting[58] makes no mention of rental rebate, or of deeming her income or of market rent being charged, notwithstanding that the applicant's Housing Manager's Homenet note states that the meeting on 30 November 2015 was "scheduled...to discuss arrears, expired rebate, and high level of complaints."
9. The respondent submits that it is not unusual or out of the ordinary for a recipient of statutory income to be cut off for failing to report or provide requested documentation. The Tribunal concurs.
10. However, the question is whether the applicant's particular circumstances meet the test of unusual or out of the ordinary. The applicant contends that the most relevant inquiry in the exercise of the discretion in subclause 25(8)(d) about whether to backdate the rebate should revolve around the applicant's income during the period for which she seeks the rental rebate be backdated and not whether there were unusual circumstances for, essentially, not completing a form.
11. The Tribunal finds that the applicant had been receiving Centrelink income for approximately 13 years, since the first of her children was born, and has lived at the premises since the tenancy commenced in June 2004 until she was incarcerated in June 2016. In 2011 she entered into the Perpetual Income Confirmation Consent which enabled the respondent to automatically obtain her income statement from Centrelink and to routinely determine whether she continued to be eligible for a rent rebate. During the currency of the PICC form it was not necessary for the applicant to complete applications for a rent rebate.
12. While the Tribunal agrees with the respondent's submission that the respondent is not obliged under the statutory scheme to remind a tenant to re-apply for a rent rebate when the rent rebate period is coming to an end the Tribunal is satisfied that when, as in this matter, the applicant has completed a PICC form and the respondent has been routinely and for a number of years automatically renewing her rental rebate it was unusual or out of the ordinary for the applicant to be putting in an application for rental rebate and for the respondent to be seeking Centrelink income information from her, particularly when she had told the respondent that she was not receiving Centrelink. The Tribunal finds that she did not have a clear understanding of what was required of her during the processing of rebates and that she was not in a position to provide the respondent with her Centrelink income statement as she was not receiving Centrelink.
13. While she said that she was trying to get back on Centrelink so she could pay her rent her personal life was tumultuous in 2015/2016. She had been diagnosed with MS in 2014 which caused her to spend periods of weeks in bed, she had ongoing distressing and destabilising interactions with the AFP and her 12 and 13 year old daughters were suddenly removed from her care when they had been with her since their births. The respondent's note of the home visit to the applicant on 11 December 2015 attests to the applicant's distress in stating "The tenant discussed Care and Protection removing the children and the effect this had had on her, the tenant was visibly distressed."
14. The Tribunal also noted that during the period the applicant was not receiving Centrelink income and not receiving rent rebate she made nine monthly lump sum payments which totalled $3,800 in an effort to maintain her tenancy. She told the Tribunal that she prioritized her rent payment after food and was able to do this by borrowing money from family and friends.
15. The Tribunal further notes that the following information was before HATRP[59]:
    • (a) on 29 July 2014 the tribunal granted a conditional termination and possession order against the applicant in the residential tenancy jurisdiction of the tribunal; and
    • (b) on 26 February 2016 the respondent made application to the tribunal in its residential tenancy jurisdiction seeking unconditional termination and possession order with effect as a warrant for eviction.
16. The respondent submits[60] that in determining whether the applicant's circumstances were unusual or out of the ordinary, the Tribunal should take into consideration the applicant's evidence that in September 2015 she had applied to Centrelink for a Disability Support Pension (DSP) and find that her ability to lodge a comparatively more involved and complicated application during the period she submits she was unable to provide the further information requested by the respondent is not consistent with her evidence that, at that time, her circumstances prevented her from providing more information. The applicant was, apparently, unsuccessful in her DSP application.
17. The applicant told the Tribunal that 2015 was a bad time for her and it seems likely that her troubles in 2015, her MS, her trouble with the police, the cessation of her Newstart Allowance, the removal of her children and her inability to provide Centrelink income statements to the respondent may have impacted on her DSP application too.
18. The respondent has set out in submissions[61] the 'normal' date for a rental rebate to begin where circumstances are 'unusual or out of the ordinary':

...in circumstances that are unusual or out of the ordinary, then normally (respondent's emphasis) the rental rebate would begin the date the last rebate expired/cancelled as guided by clause 8 Rental Rebate Operational Guideline.

1. The Tribunal has looked at this matter anew. Having considered all of the facts and circumstances as set out in the material before it the Tribunal is not satisfied that, at the date of review, the decision under review is the correct or preferable decision.
2. Subclause 25(8)(d) of the Program gives the respondent the discretion to provide that a rent rebate takes effect from an earlier date. Clause 8 of the Guideline assists in interpreting subclause 25(8) by stating that 'particular circumstances' 'include circumstances that are unusual or out of the ordinary' and then gives examples such as 'where a tenant was unconscious and in hospital and could not contact Housing ACT to make them aware of their situation or where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member'. While the examples have been described as "extremely serious examples and the seriousness of those examples indicates the high threshold an applicant's circumstances must attain for the commissioner to be satisfied that the failure to apply for the rent rebate earlier is adequately justified"[62], the Tribunal finds that the examples are not exhaustive.
3. The applicant has been charged an extra $6507 in market rent for a period of time when she was in receipt of no income. Because of those arrears she is at risk of eviction in proceedings in the residential tenancies jurisdiction of the tribunal.
4. The Tribunal accepted her evidence in her witness statement and before the Tribunal. The applicant found herself in a situation where, not having had to apply for rental rebates for a number of years because of the PICC form, and being without Centrelink income, she was required to apply for a rental rebate when she was unable to provide a Centrelink income statement. At this time she had been diagnosed with MS and was not enjoying good health. She said that "[MS] just takes it out of me, like there's times when I can't leave the house and I can't get out of bed, like can't pick up a phone or hold a cup."[63] She had told the respondent she was not receiving Newstart and instead of advising her that the respondent could 'deem' her income she was left trying to get back on Centrelink to be able to provide the income statement requested by the respondent. As well as her ill health, she was experiencing the distressing events referred to above. The Tribunal agrees with the applicant's solicitor's description of this being a tumultuous time for the applicant.
5. The Tribunal has taken into account all relevant considerations and all statutory instruments which guide the Tribunal in the exercise of a discretionary power. While the Tribunal accepts that it is not unusual or out of the ordinary for a recipient of statutory income to be cut off for failing to report the Tribunal finds that it is unusual or out of the ordinary for the respondent to continue to request income statements when, as in this case, the applicant has told the respondent's representative on more than one occasion that she has been cut off from Newstart. The Tribunal agrees with the applicant that it would have been obvious to the respondent that the applicant would not be able to provide a Centrelink income statement when she was not receiving that income.
6. The Tribunal also finds that for a tenant who has been receiving automatic assessments of rent rebates through the respondent using the PICC form for some years it is unusual or out of the ordinary for her to be now making a rent rebate application and being asked to provide information she cannot provide. The respondent's representative's failure to appropriately deal with her rebate application or to advise her how she might satisfy the respondent's request for income information also contributes to the Tribunal finding that the applicant's circumstances do meet the test of unusual or out of the ordinary.
7. Finally, and importantly, the Tribunal finds that the applicant's payments of $3,800 while not in receipt of any income and which, if her rebate is backdated to 14 November 2015, will place her $1,603 in credit with her rent is an unusual or out of the ordinary circumstance.
8. Considering all of the above matters the Tribunal is satisfied that the applicant's circumstances are unusual or out of the ordinary and that the correct or preferable decision is that pursuant to subclause 25(8)(d) of the Program the date of effect of the applicant's rent rebate is from 14 November 2015 being the date when her previous rebate was cancelled.

[1] At the hearing this date was agreed to be 14 November 2015

[2] Respondent's statement of reasons dated 29 August 2016, page 15

[4] Applicant's statement of facts and contentions dated 4 October 2016 at [5] - [8]

[5] Applicant's statement of facts and contentions dated 4 October 2016 at [48]

[6] Which at the hearing was agreed to be 14 November 2015

[7] Applicant's statement of facts and contentions dated 4 October 2016 at [54]

[8] Applicant's statement of facts and contentions dated 4 October 2016 at [63 iv]

[9] Applicant's statement of facts and contentions dated 4 October 2016 at [7] and [63 iii]

[10] Applicant's statement of facts and contentions dated 4 October 2016 at [63]

[11] Applicant's statement of facts and contentions dated 4 October 2016 at [8] and [38] to [46]

[12] Respondent's submissions dated 27 October 2016 [11] - [27]

[13] Respondent's submissions dated 27 October 2016 [11] - [27]

[14] Further submissions of respondent 29 November 2016 pages 11 - 20

[15] Further submissions of the respondent dated 29 November 2016 page 13; Human Rights Committee, General Comment No. 16 [32]: Right to Privacy (1988) HRI/GEN/1/Rev.9 (Vol. 1) at [3] to [4]; PJB v Melbourne Health & Anor (Patrick's Case) [2011] VSC 327, Bell J at [77] to [80]

[16] Further submissions of the respondent dated 29 November 2016 at page 14 'Lawfulness' at [8], [9] and [10]

[17] Commissioner for Social Housing in the ACT v "A" [2015] ACAT 13 at [51]

[18] Submissions of respondent 27 October 2016, page 6

[19] Respondent's further submissions dated 29 November 2016 at [14]

[20] Applicant's statement of facts and contentions dated 4 October 2016 at [6]; Respondent's further submissions dated 29 November 2016, page 6 at [14]

[21] Applicant's statement of facts and contentions at [7]; Respondent's further submissions, page 6 at [15]

[22] Respondent's further submissions page 6 at [17]

[23] Minister for Immigration and Ethnic Affair v Pochi [1980] FCA 85 at [10]

[24] [2008] HCA 31 at [35], [98]

[25] [1979] FCA 39 577 at 589

[26] [2008] HCA 31 at [140],

[27] Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39 at 601

[28] Drake's Case at 599, per Smithers J

[29] Transcript of Proceedings page 27 lines 21-23

[30] Minister for Immigration and Ethnic Affair v Pochi [1980] FCA 85 at [12]

[31] [1996] NSWSC 348; (1996) 91 LGERA 31

[33] Applicant's statement of facts and contentions [6]; respondent's further submissions pages 5-6 at [14]

[34] Respondent's further submissions page 6 at [18]-[23]

[35] [2015] ACAT 46

[36] Transcript of proceedings page 19 lines 13 - 19

[41] [2010] VCAT 328 at [34]

[42] [2011] VSC 327, [85]

[43] [2015] ACAT 13 at [38], [42]-[43]

[44] [2016] ACAT 75 at [25]

[45] Further Submissions of respondent page 20 at [36]

[46] Further submissions of respondent page 11 at [10]

[48] [2009] ACTSC 48 at [51]

[49] Transcript of Proceedings page 38, lines 15-22

[50] [2010] VSC 310 at [185] [186]

[54] Her Newstart Allowance was suspended with effect from 29 April 2015

[55] When she reapplied for Newstart Allowance and which was granted from 4 February 2016

[56] Applicant's witness statement 4 October 2016 at Annexure C1

[57] Applicant's statement of facts and contentions at [41]

[58] Statement of reasons at page 20, 21

[60] Closing submissions of respondent at [9]

[61] Submissions of the respondent filed 27 October 2016 at [21]

[62] Ms Storey for the respondent at Transcript of Proceedings page 62, lines 41 - 44

[63] Transcript of proceedings page 52 , lines 29 - 31