Conclusions on the appeal
35 In answer to the first respondent's written submission, summarised above, the applicant sough to distinguish the terms of the legislation in Scargill ('usually resides') and in Nessa ('habitual resident'). Whilst I accept that the legislation in those cases was, of course, expressed in language which was different from the present, it does not, in my opinion, follow that the Tribunal adopted a wrong legal test here.
36 It will be recalled that the Tribunal stated that the term 'residence' encompassed both temporal and emotional factors, so that, relying on the ordinary dictionary meaning, there must be both a physical presence in the particular place, as well as the intention to treat that place as 'home'. In my view, this was, in law, a correct analysis of the term in the present context.
37 In my opinion, there is no scope for judicial review in the present case.
38 It will be recalled that in Gauthiez, Gummow J referred to the reasons of Dixon J in Miller, at 104. Those reasons, and their context, are, in my view, particularly pertinent here, especially since the question in Miller was whether the taxpayer was (simply) 'resident' (not 'usually' or 'habitually' so) in a place.
39 In Miller, the Commissioner of Taxation (purportedly) appealed to the High Court, invoking s 196 of the Income Tax Assessment Act 1936 - 1943, from a decision of a Board of Review holding that the taxpayer, a deep-sea fisherman, was a resident of the Territories of New Guinea and Papua.
40 Under s 196(1), an appeal from a Board decision lies only if the decision involves a question of law.
41 Dixon J said (at 103):
'Having regard to the character of the place [i.e. the Milne Bay Military base in 1942 and 1943], I do not think that, had I been in the Board's place, I should have regarded the facts I have stated as leading to the conclusion that the taxpayer was a resident of Papua. But I am not satisfied that their decision involved any question of law. It is not legally impossible for a man to reside in a country, though he lives on a moving craft plying upon its rivers or within its territorial waters. Nor is it legally impossible for a man to reside at a military base, even a forward one.'
42 Likewise, it may be said in the present case, that even if all the matters relied upon by the applicant in his argument had been taken into account by a decision-maker, it is not legally impossible to conclude that the applicant did not commence residing in Australia from 21 May 2001.
43 Dixon J (at 103), referring to two decisions of the House of Lords (including Levene, above) said:
'The two cases of Levene and of Lysaght [(1928) AC 234] are as striking as they are decisive in illustrating the way in which the question of "resident" or "not resident" has become a "question of degree and therefore of fact". Lord Buckmaster said:-"It may be true that the word 'reside' or 'residence' in other Acts may have special meanings but in the Income Tax Acts it is, I think, used in its common sense and it is essentially a question of fact whether a man does or does not comply with its meaning. It is, of course, true that if the circumstances found by the Commissioners in the special case are incapable of constituting residence their conclusion cannot be protected by saying that it is a conclusion of fact since there are no materials upon which that conclusion could depend."
Lord Warrington said: "I have reluctantly come to the conclusion that it is now settled by authority that the question of residence or ordinary residence is one of degree, that there is no technical or special meaning attached to either expression for the purposes of the Income Tax Act, and accordingly a decision of the Commissioners on the question is a finding of fact and cannot be reviewed unless it is made out to be based on some error in law, including the absence of evidence on which such a decision could properly be founded."'
44 Of these final observations, Dixon J observed (at 104):
'As the Board of Review is an administrative body it may be doubted whether a decision by it can be said to involve a question of law because it is based on insufficient evidence. But, no doubt, if the facts coming before the Board were incapable of the legal complexion placed upon them, that would involve a question of law and the difference is not great.'
45 In my opinion, these comments are applicable here. Dixon J proceeded to conclude his reasons (at 104):
'…[T]he appeal is not properly before us unless the decision of the Board involves a question of law.
The Board have given their reasons and no misapprehension of the meaning of the provision in question is disclosed and no misconception appears as to what amounts to "residence" as a general proposition. No proposition of law appears to have been assumed. It all seems to me to come back to the so-called question of fact. I am, therefore, not satisfied that the appeal lies.''
46 In my opinion, those observations are equally applicable here. There was no error of law. The appellant's complaint is, in truth, based upon the Tribunal's factual findings.
47 Moreover, no question of estoppel can arise. There is no evidence of detriment, for one thing. Specifically, there was no reliance upon any express representation, nor any sufficiently clear and unambiguous (implied) representation, even if the difficulties in applying estoppel in administrative law, in the performance of a positive statutory duty, could be overcome (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J at 207 - 218).
48 In the circumstances, it is not necessary to consider Mr Reilly's other points.