Director of Housing v Sudi  VCAT 328 (31 March 2010)
Justice Bell, sitting as President of the Victorian Civil and Administrative Tribunal, has held that the Director of Housing acted unlawfully under s 38(1) of the Charter in seeking, without adequate justification, to evict a refugee family from social housing in breach of their right to family and the home under s 13(a). His Honour further held that this unlawfulness invalidated the Director’s application for a possession order under s 344 of the Residential Tenancies Act.
Warfa Sudi, a Somalian refugee, and his three year old son live in a home owned by the Director of Housing. The tenancy agreement for the home was originally made with Mr Sudi’s mother, Qamar Ali, but Mr Sudi and his son continued to occupy the premises after Ms Ali died from cancer. The Director of Housing subsequently made application under s 344(1) of the Residential Tenancies Act for a possession order to enable him to evict Mr Sudi.
It was common ground that the Director of Housing is a public authority under the Charter and, as such, is required by s 38(1) to act compatibly with human rights and give proper consideration to human rights in making decisions.
Mr Sudi argued that the Director’s decision to seek to evict him breached his human rights under s 13 (right to privacy, family and the home), s 17 (protection of families and children) and s 19 (cultural rights) of the Charter. Mr Sudi further argued that, by consequence of this unlawfulness, the Director was not entitled to seek to evict him.
The Director of Housing did not seek to justify the application for a possession order as a permissible limitation on human rights under s 7(2) of the Charter, but instead submitted that the Tribunal had no jurisdiction to consider the lawfulness of his actions under the Charter, that being a matter reserved to the Supreme Court.
Justice Bell held that the Tribunal had jurisdiction to consider the Charter issues in the case. His Honour further held that the decision and conduct of the Director of Housing in seeking to evict Mr Sudi and his son without justification was a breach of the right to family and the home under s 13(a) of the Charter and thus unlawful pursuant to s 38(1). As the Director’s making of an application for a possession order was ‘unlawful’ under the Charter, it was not a valid application properly made under s 344 of the Residential Tenancies Act. The Director’s application was therefore dismissed.
Human Rights Jurisdiction of Tribunal
Justice Bell held that the Tribunal had jurisdiction to consider and determine the Charter issues in the case, stating that ‘when issues under the Charter legitimately arise in applications before the Tribunal, it should resolve them if it can properly do so’. His Honour pointed out that ‘human rights remedies must be accessible in order to be effective’ and that, were the Tribunal not to have jurisdiction in the first instance, litigants in circumstances such as Mr Sudi would be forced to have their matters partly heard in the Tribunal and partly heard in the Supreme Court. This would be a ‘bad outcome’ for access to justice and contrary to the principles of ‘finality and complete dispute resolution’.
Right to Family and the Home: s 13(a)
Section 13(a) of the Charter provides that ‘a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.
The requirement of ‘legality’ requires that any interference with this right be governed by ‘clear and publicly accessible rules of law’ and by procedures that are ‘predictable and foreseeable’.
The prohibition against ‘arbitrary interference’ is in addition to the requirement of lawfulness, and requires that any interference be reasonable, necessary and proportionate.
After considering jurisprudence from the UN Human Rights Committee, the European Court of Human Rights, the United Kingdom and South Africa, Bell J held that evicting or seeking to evict someone from public or social housing constitutes an interference with their right to home and, where a family is living in the premises, also amounts to an interference with their right to family:
Evicting people living in public housing is a severe infringement of their human rights, especially those which protect the family and the home. Unless interference is demonstrably justified, it breaches human rights and is ‘unlawful’ under the Charter. The onus is on the person seeking to uphold the infringement to establish this justification.
Given the ‘serious interference’ with s 13(a) in this case, Bell J did not consider it necessary to determine whether other human rights were engaged by the circumstances.
Limitations on Rights: s 7(2)
Section 7(2) of the Charter provides that any limitation on human rights must be reasonable and demonstrably justifiable. Following the decisions of DAS v VEOHRC  VSC 381 and R v Oakes  1 SCR 103, Bell J held that:
- the onus of establishing that a limitation of human rights is reasonable and justified is on the party seeking to uphold the limitation;
- in many cases, this requires evidence;
- the standard of proof is high; and
- the evidence must be cogent and persuasive.
In the present case, the Director of Housing failed to provide any justification or evidence in support of the interference with s 13(a) constituted by the possession order application. Accordingly, Bell J held that the making of the application was ‘unlawful’ under s 38(1) of the Charter.
Consequence of Unlawfulness
Justice Bell then turned to the question as to the consequence of the Director’s unlawfulness under the Charter in the context of an application for a possession order under the Residential Tenancies Act. On this issue, His Honour held that:
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... 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... 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’.
Accordingly, Bell J dismissed the Director’s application for a possession order.
The decision is available here.
Phil Lynch is Director of the Human Rights Law Resource Centre