Kupisz v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Meaning of "residence" 10 The AAT relied primarily on the judgment of Wilcox J in Hafza v Director-General of Social Security (1985) 60 ALR 674 at 680, where his Honour discussed the concept of residence. Justice Wilcox referred to two elements of residence: · physical presence in a particular place; and · an intention to treat that place as home, at least for the time being, not necessarily forever. 11 Justice Wilcox then referred to a person not necessarily ceasing to be a resident of a country because he or she is physically absent. The test is therefore, whether a person has retained a continuity of association with the place of residence. Further, Wilcox J at 680-681 referred to the fact that a person could be resident in more than one place and said: [t]he application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. 12 The relevant legislative instrument which required examination by the AAT was the agreement between Australia and Austria found at Sch 10 to the SSIA Act. The AAT was not examining whether or not a person "is residing in Australia" for the purposes of the SS Act. Therefore the matters set out in s 7(3) of the SS Act to which regard must be had in deciding whether or not a person is currently resident in Australia for the purposes of the SS Act, are not matters the AAT was required to take into account when determining whether Ms Kupisz was ever resident in Australia for the purposes of the SSIA Act and the agreement.

Residence issues 13 Whether or not Ms Kupisz has ever been an Australian resident is a question of fact. The AAT approached the matter by asking, consistently with Hafza whether Ms Kupisz ever intended to treat Australia as her home, even if for a short period of time. The AAT found that when Ms Kupisz came to Australia with her husband in November 2004, she intended to make Australia her home. The AAT therefore determined that at one time Ms Kupisz had been an Australian resident. 14 The agreement applies to residents of Australia and Austria. The AAT determined that despite having been a resident of Australia in the past, Ms Kupisz was unable to avail herself of the agreement because she was not a resident of Austria at the time she applied for the carer payment. At the time of the application, Ms Kupisz did not have insurance under the Social Insurance Scheme in Austria. However, Art 5.1 gives rights to access benefits, dependent on residence in either country, subject to exceptions regarding Australia in Art 5.4. Counsel for Ms Kupisz contended to the contrary, submitting that residence in Austria was not required. That contention is at odds with the text of Art 5.1 and discloses no error of law as is discussed at [20] below. 15 The question the AAT next considered, in accordance with the proper interpretation of the agreement, was whether Ms Kupisz was a resident of Austria as at 8 May 2007. 16 The AAT accepted that there was evidence that Ms Kupisz was in Austria when she lodged her claim, but said that did not determine she was residing there at the time. It observed that her failure to register for social insurance did not mean that she was not residing in Austria. 17 Ms Kupisz left Australia on 10 February 2005 to return to her native Poland where her ill mother resided. In May 2005, Ms Kupisz separated from her husband. On 24 April 2007, her former husband departed Australia for Austria. He arrived in Austria on 25 April 2007. On 27 April 2007, Ms Kupisz joined her former husband in Austria. There was evidence before the AAT that by 11 October 2007, Ms Kupisz had established a residence in Austria and that prior to then Ms Kupisz and her former husband had no permanent place of abode, instead relying on the generosity of friends for accommodation. 18 The AAT noted that the application for carer payment was completed on 27 April 2007, but received by the respondent and accepted as lodged as at 8 May 2007. In my view there cannot be said to be an application unless it is accepted as lodged. The application should be treated as having been made on 8 May 2007. That is consistent with the AAT's approach. 19 The AAT was not satisfied that as at 8 May 2007, Ms Kupisz was a resident of Austria. That is because it was not satisfied that, as at that date, she had formed an intention to regard Austria as her home. The AAT said: She had no established ties with Austria apart from the fact that she had gone there with the intention of caring for Mr Dudek. Her accommodation was largely itinerant, she had no assets, bank accounts or other relatives residing in Austria. Whilst she went to Austria for the purpose of caring for her estranged husband, they had been separated for almost two years. 20 Counsel for Ms Kupisz contends that it was sufficient for his client merely to be in Austria at the time of making the claim, without being resident there. There is nothing in the agreement to support that approach. The mere presence of someone in Austria at the time is insufficient when one considers that Art 5.1 refers to residency, not mere physical presence. There must be evidence of an intention to treat the place as home.

Question of Law 21 Counsel for Ms Kupisz further contends that the AAT erred in finding that his client had not established that she was a resident in Austria at the time of the claim for the carer payment. As her counsel conceded, whether or not Ms Kupisz was a resident at the time is a question of fact. The AAT determined that question of fact by reference to the well established test, being whether Ms Kupisz had intended to make Austria her home at the time of her application. If the AAT's finding of fact is contestable and reasonable minds might draw different conclusions on whether Ms Kupisz had intended to make Austria her home at that time, that conclusion is insufficient to demonstrate that the AAT made an error of law. 22 The notice of appeal does not disclose any error of law in the AAT's reasons. An appeal under s 44(1) of the AAT Act only arises on a question of law. The existence of a question of law is crucial to the validity of the appeal. Questions of law sought to be raised on a s 44 appeal should be identified clearly and stated with precision in the notice of appeal, as pure questions of law; see Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, (2003) 76 ALD 321. 23 Apart from the attempt to construe Art 5.1 as not depending on residency in Austria, the only matter on which Ms Kupisz may take issue with the AAT depends on a finding of fact made by it, while applying the relevant law in an unexceptional way. No error of law in the AAT's decision has been identified. 24 Whilst the notice has been prepared by Ms Kupisz without legal assistance, she has been represented by counsel on the appeal. At no time has an application been made to formally amend the document constituting the notice of appeal in this matter filed with the Court. In any event had the notice been amended as foreshadowed orally, given the terms of Art 5.1 and its insistence on "residency" no error of law would have been established. As Logan J said in John Holland Group Pty Ltd v Robertson [2010] FCAFC 88 at [84], "[a]bsent a question of law, the Court has no jurisdiction to entertain the proceeding".

Order 25 For the foregoing reasons the appeal from the decision of the AAT is dismissed, with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.