Kupisz v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] FCA 788
•29 July 2010
FEDERAL COURT OF AUSTRALIA
Kupisz v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 788
Citation: Kupisz v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 788 Parties: LIDIA MARIA KUPISZ v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS File number: TAD 1 of 2010 Judge: MARSHALL J Date of judgment: 29 July 2010 Catchwords: SOCIAL SECURITY—Application for carer payment —Application of International Agreement between Australia and the Republic of Austria under the Social Security (International Agreements) Act 1999 —the correct interpretation of residency under the Act —no error of law found—appeal dismissed. Legislation: Administrative Appeals Tribunal Act 1975(Cth) s 44 Social Security Act 1991 (Cth) s 198
Social Security (International Agreements) Act 1999 (Cth) Sch 10
Social Security (Administration) Act 1999 (Cth) s 29Cases cited: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, (2003) 76 ALD 321
Hafza v Director-General of Social Security (1985) 60 ALR 674
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88Date of hearing: 26 July 2010 Place: Hobart Division: GENERAL DIVISION Number of paragraphs: 25 Counsel for the Applicant: Mr P Warmbrunn Counsel for the Respondent: Mr D Wilson Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
TAD 1 of 2010
BETWEEN: LIDIA MARIA KUPISZ
ApplicantAND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
26 JULY 2010
WHERE MADE:
HOBART
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Applicant pay the Respondent’s costs of the proceeding.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
TAD 1 of 2010
BETWEEN: LIDIA MARIA KUPISZ
ApplicantAND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
MARSHALL J
DATE:
29 JULY 2010
PLACE:
HOBART
REASONS FOR JUDGMENT
The applicant, Ms Kupisz, appeals from a decision of the Administrative Appeals Tribunal (“the AAT”), pursuant to s 44 of the Administrative Appeals Tribunal Act 1975(Cth) (“the AAT Act”). The AAT affirmed a decision of the Social Security Appeals Tribunal to reject Ms Kupisz’s claim for an Australian carer payment whilst residing overseas.
The issue for determination before the AAT was whether Ms Kupisz was, as at 8 May 2007, entitled to claim an Australian carer payment pursuant to an international agreement between Australia and the Republic of Austria. The resolution of that issue depended on whether Ms Kupisz had ever been an Australian resident and whether she was an Austrian resident at the time she made her application for a carer payment.
The legislative context
Under s 198 of the Social Security Act 1991 (Cth) (“the SS Act”), a person who provides personal constant care for a disabled adult may be entitled to a carer payment. Whether Ms Kupisz was a carer of a disabled adult is not an issue in contention in this appeal.
Section 198(4) provides that the carer must be an Australian resident unless:
(a)the person is in a country in which carer payment may be granted to the person under a scheduled international social security agreement; and
(b)the scheduled international social security agreement entered into force on or before 24 December 1992.
The agreement between Australia and the Republic of Austria on social security is found at Sch 10 to the Social Security (International Agreements) Act 1999 (Cth) (“the SSIA Act”). It entered into force on 1 December 1992. Article 2 (1) (a) (iv), as amended, applies the agreement to “carer payments” under the SS Act.
Article 3 under Sch 10 of the agreement applies to any person who is or has been an Australian resident, or is or has been subject to the Austrian legislation on social security. Ms Kupisz contends that she had been an Australian resident and at the time of her application was an Austrian resident, and, was therefore entitled to the benefit of the agreement.
Under s 29 of the Social Security (Administration) Act 1999 (Cth) (“the SSA Act”), a claim for a social security payment (apart from some immaterial exceptions) may only be made by a person who is an Australian resident and is in Australia. Section 29(2), subject to some irrelevant exceptions, provides that:
…a claim made at the time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
However Art 4 under Sch 10 of the agreement provides for equality of treatment for nationals of Australia and Austria in the application of the legislation of each country. Article 4(2) provides:
Benefits under the legislation of one Party shall be granted to nationals of the other Party resident outside the territories of both Parties, under the same conditions and to the same extent as they are granted to the nationals of the first party who reside outside the territories of the Parties.
Article 5.1 under Sch 10 of the agreement provides:
Unless otherwise provided in this Agreement any provision of the legislation of a Party under which qualification for or payment of a benefit is dependent on a person being a resident of, and/or present in the territory of that Party shall not apply to nationals of either Party, …
However Art 5.4(b) provides that Art 5.1 does not apply to a claimant for a carer pension who has never been an Australian resident.
Meaning of “residence”
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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. Associate:
Dated: 29 July 2010
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