LIDIA MARIA KUPISZ and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 893
•20 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 893
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2162
GENERAL ADMINISTRATIVE DIVISION ) Re LIDIA MARIA KUPISZ Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date20 November 2009
PlaceHobart
Decision The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Senior Member
CATCHWORDS
SOCIAL SECURITY - overseas applicant for carer payment - application of International Agreement between Australia and the Republic of Austria - whether applicant an Australian resident for purposes of the Act - decision under review affirmed
Social Security Act 1991, s 7(3),
Social Security (Administration) Act 1999, s 29
Social Security (International Agreements) Act 1999,
International Agreement between Australia and the Republic of Austria, Article 3, Article 5
Hafza v Director-General of Social Security (1985) 60 ALR 674
Firdousi and Secretary, Department of Family and Community Services [2005] AATA 1304
Levene v Commissioners of Inland Revenue [1928] AC 217
Judd v Judd (1957) 75 WN NSW 147
REASONS FOR DECISION
20 November 2009 Ms A F Cunningham (Senior Member) 1. The applicant Lydia Kupisz lodged a claim for Australian carer payment whilst residing overseas on 8 May 2007. Centrelink's rejected the applicant's claim which decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 8 April 2008. The applicant seeks a review of the SSAT's decision.
2. The SSAT rejected the claim on the basis that Ms Kupisz had never been an Australian resident and was not in Australia at the time of lodging her claim.
3. Ms Kupisz disputes the findings of the SSAT and maintains that she is subject to the provisions of the International Agreement between Australia and the Republic of Australia (the Agreement) in that she was a resident of and in Austria at the time of lodging her claim. These are the issues for the Tribunal to determine on the application for review.
4. The hearing was conducted by way of telephone link to Ms Kupisz in Austria who was represented by her husband Mr Dudek. The Tribunal was assisted by the services of an interpreter.
5. Following the hearing further documentation together with the respondent's final written submissions was forwarded to Ms Kupisz who was afforded an opportunity to reply in writing. Some time elapsed between the hearing of the application for review on 18 June 2009 and the receipt of the documentation due to it being forwarded to an incorrect address.
Background
6. The following background facts were not in dispute and the Tribunal finds accordingly:
(i) Ms Kupisz was born in Poland on 16 July 1966. She first arrived in Australia on 25 March 2001 on a temporary entry permit and departed Australia on 6 May 2001.
(ii) On 2 June 2001 Ms Kupisz married Mr Dudek, an Australian citizen. She entered Australia without her husband on a temporary entry permit/provisional residence visa on 4 March 2002. Ms Kupisz departed a few days later on 10 March 2002.
(iii) Ms Kupisz next entered Australia with her husband on a permanent visa on 18 November 2004 to live with her husband. She departed without her husband on 10 February 2005 and has never returned to Australia since that date.
(iv) On 24 April 2007 Ms Kupisz's husband, Mr Dudek, left Australia to reside in Austria.
(v) Ms Kupisz's Australian visitor visa granted on 20 February 2001 permitted her to remain in Australia for a period of three months. Pursuant to that visa Ms Kupisz arrived in Australia on 25 March 2001 and departed on 6 May 2001.
(vi) On 8 May 2007 Ms Kupisz lodged her claim for carer payment.
7. It was Ms Kupisz's evidence that she entered Australia on 4 March 2002 to preserve the terms of her visa. A copy of her Australian visa states:
"Class of provisional resident P620, sub class 309 ... initial entry by 13 March 2002".
.
The visa which was granted on 30 July 2001 permitted the holder:
"to travel to and remain in Australia until notified that the permanent visa application has been decided or until the permanent visa application is withdrawn".
8. It was Ms Kupisz's evidence that the reason why she came to Australia on 4 March 2002 and left on 10 March 2002 was that her visa condition required entry by 13 March 2002. It is not clear why she departed within six days. Ms Kupisz said that she had also returned to look after her sick husband. It was Ms Kupisz's evidence that she was required to leave Australia by 13 March 2002 but this does not seem apparent from the documentation which required entry into Australia by that date.
9. Pursuant to the grant of a permanent entry visa on 26 February 2004, Ms Kupisz came to Australia with her husband on 18 November 2004. It was her evidence that she left Australia without her husband to return to Poland to care for her sick mother.
10. Ms Kupisz lived with her mother in Poland until her death in October 2005. She said that she separated from her husband who continued to live in Australia in around May 2005. Her husband had been unhappy about her decision to return to Poland to care for her mother.
The Legislation
11. The law relevant to this application is contained in the Social Security Act 1991 (the SS Act), the Social Security (Administration) Act 1999 (the SS(A) Act) and the Social Security (International Agreements) Act 1999 (the SS(IA) Act).
12. The qualification provisions for carer payment are contained in section 198. After hearing the evidence of Ms Kupisz, it was conceded by Mr Sparkes on behalf of the respondent that Ms Kupisz qualified for "carer of a disabled adult" in accordance with this section.
13. An overriding provision contained in section 29 of the SS(A) Act states that a claimant for a social security payment must be an Australian resident and in Australia at the time of the claim. The criteria for deciding whether or not a person is residing in Australia are listed in section 7(3) of the SS Act as follows:
"In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia".
14. As Ms Kupisz was not in Australia at the time of lodging her claim, she relies on the provisions of the International Agreement between Australia and the Republic of Austria. Article 3 of the Agreement reads as follows:
"People Covered by the Agreement with Austria
People covered
Article 3 - Personal Scope - of the Agreement with Austria specifies the people to whom the Agreement applies. The Agreement applies to:
·people who are or have been Australian residents, and/or
·people who have been insured under the social insurance scheme in Austria
The Agreement can also apply to any person who derives rights from the above-mentioned people. Such a person might be a partner, dependant, widow or survivor of those people".
15. Of further relevance is paragraph 4 of Article 5 which states that the exemption provision of paragraph 1 does not apply for a claimant for a carer pension who has never been an Australian resident. It thus appears that unless Ms Kupisz has at some time been an Australian resident (as defined in the social security law) then she cannot come within the scope of the International Agreement.
Authorities
16. It is accepted that physical presence alone is not sufficient but in addition there must be evidence of an intention to treat that place as home. As Wilcox J said in Hafza v Director-General of Social Security (1985) 60 ALR 674:
"There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever.
...
The test is whether the person has retained a continuity of association with the place (Levene v Commissioners of Inland Revenue (1928) ACT 217 at 255 and Judd v Judd (1957) 75 WN NSW 147 at 149) together with an intention to return to that place and an attitude that that place remains "home"".
17. The issue of residency was considered by the Tribunal in Firdousi and Secretary Department of Family and Community Services [2005] AATA 1304. In that decision Deputy President Forgie referred to a number of decisions which had considered the term in various contexts including taxation and bankruptcy law as well as social security. The Deputy President also considered the concept of "ordinarily resident" noting that both terms require both physical presence and an intention to live or dwell in a place. She suggested that the difference between the two concepts of reside and ordinarily reside comes from differences of degree in physical presence and degree of intention. At paragraph 26 the Deputy President stated:
"A person who, for example, lives or dwells continuously, or relatively so, in a place and intends to do so may be said to be ordinarily resident in that place. A person who lives or dwells in a place for only a short period and who intends nothing else may be said to be resident , but not ordinarily resident, in that place for that period".
18. The Deputy President went on to say at paragraph 27 when referring to the term "residing in Australia but temporarily absent from Australia" which is referred to in sections 7(2B), 7(2D) and 7(2E):
"In drawing the distinction, the provisions suggest that mere physical presence and mere intention to be in Australia even for what could be a substantial period may not be enough. That does not mean that a person must necessarily be in Australia for any substantial period before being considered to reside here. Residence of the type required by s.7 must start somewhere and, provided the evidence otherwise points to it, a person could be regarded as resident in Australia even if physically present only for a short period. As these matters are frequently judged in retrospect rather than at the time, residence over that short period can be assessed in light of a person's subsequent actions".
Australian Residence
19. It is in this context that Mr Sparkes submitted that Ms Kupisz was unable to demonstrate an intention to remain permanently in Australia, particularly her actions in leaving Australia within three months of having arrived with her husband on 18 November 2004.
20. It was Ms Kupisz's evidence that she left Australia on that date to return to Poland to care for her sick mother. She said that she had always intended to return. She did not do so however following the death of her mother in October 2005 but continued to live in Poland.
21. In the claim form Ms Kupisz stated that she had lived in Australia for three years. When the dates of her arrival and departure were put to her she did not dispute them but said in response:
"But I think it's the truth because I was always here in spirit and I kept leaving - had to leave it".
22. In subsequent letters Ms Kupisz refers to a desire to return to Australia at some time if her husband's health improves.
23. Although it would be difficult to substantiate that Ms Kupisz was an Australian resident at the time of lodging her claim, the issue is whether she had ever been an Australian resident. Whilst it is generally accepted that physical presence and the mere intention to remain in Australia for even a substantial period may not be enough, as Deputy President Forgie pointed out in the Firdousi decision, a person could be regarded as an Australian resident even if only physically present in Australia for a short period of time. The question for the Tribunal to determine is whether there is evidence to support a finding that Ms Kupisz intended to treat Australia as her home and as Wilcox J said in the Hafza decision:
"At least for the time being, not necessarily for ever".
24. The evidence was that Ms Kupisz arrived in Australia with her husband, an Australian citizen on a permanent entry visa which had been granted on 26 February 2004. The SSAT considered the factors in section 7(3) of the SS Act and concluded that Ms Kupisz had not resided in Australia since she was granted a permanent visa (see paragraph 25). This cannot be correct as her permanent entry visa was granted on 26 February 2004 and she entered Australia on 18 November 2004.
25. I refer to the factors listed in section 7(3). Whilst Ms Kupisz and her husband did not own property in Australia, they rented accommodation living in Perth, Western Australia. Rental payments continued to be made well after Ms Kupisz's departure from Australia. They were not a wealthy couple and there is no evidence that they owned property outside Australia. Ms Kupisz sought employment in Australia but was unsuccessful. She applied for and was granted Newstart Allowance. Ms Kupisz also obtained an Australian Medicare health card which was valid until 07/2011. There is evidence that she applied for and was granted a tax file number on 13 December 2004. The couple also opened a bank account with the Commonwealth Bank into which their social security payments were made. A copy of a bank statement was tendered in evidence which showed that the account was still operating in January 2008. Ms Kupisz obtained a Commonwealth Maestro Card with an expiry date 11/07. There was no evidence that Ms Kupisz had any bank accounts outside of Australia at that time. Whilst Ms Kupisz had no other blood relatives living in Australia, she points out that her husband's adopted step-children resided in Australia. Ms Kupisz's relatives, namely her mother and father, continued to reside in Poland where she was born.
26. Although Ms Kupisz's stays in Australia prior to November 2004 were of very short duration, they could be indicative of her future plans to live in Australia. Ms Kupisz initially entered Australia on temporary entry permits, but she eventually applied for and was granted a permanent entry visa. Up until her departure in February 2005, the indicators are that she had intended to make Australia her home. This is despite the fact that she had only been in Australia at that time for less than three months. Her only reason for departing Australia on 10 February 2005 was to return to Poland to care for her ill mother. It was Ms Kupisz's evidence that her husband was not happy about her decision to return to Poland to care for her mother and that the couple subsequently decided to separate in May 2005.
27. There was no evidence that Ms Kupisz had given any indication to Centrelink that she did not intend to return to Australia. There was documentary evidence that Ms Kupisz remained liable for the lease payments on a unit at North Beach, Western Australia after her departure in February 2005. It would appear that Ms Kupisz had not taken any steps to terminate her lease arrangement prior to her departure which suggests that she did intend to return to Australia.
28. Ms Kupisz has never returned to Australia since she left on 10 February 2005. Mr Sparkes submitted that her subsequent actions are indicative of her intention not to reside in Australia on a permanent basis. The Tribunal does not agree and finds that when Ms Kupisz came to Australia with her husband on a permanent entry visa in November 2004 she did intend to make Australia her home. It was only the unfortunate illness of her mother that caused her to leave when she did. Her decision not to return to Australia was made when the couple decided to separate in May 2005.
Austrian Residence
29. Having determined that at one time Ms Kupisz was an Australian resident, the next question to determine is whether she was a resident of Austria at the time of lodging her claim in May 2007.
30. Article 3 of the International Agreement refers to persons who have been insured under the Social Insurance Scheme in Austria. The evidence was, which the Tribunal accepts, that at the time of lodging her claim Ms Kupisz did not have this insurance. The respondent also relied on the fact that Ms Kupisz had not completed the Liaison Form which is required to be completed by persons present in Austria for more than three days.
31. Evidence was given by Sven Ladiges, a Centrelink employee in the International Services Branch regarding the process involved in assessing overseas pension claims. He confirmed the evidence that Ms Kupisz had not been granted insurance periods in Austria and referred the Tribunal to the relevant translated document which was tended in evidence. Mr Ladiges stated that as the International Agreements do not specify how an assessment of residence is made for overseas claimants, generally factors in section 7(3) of the SS Act are considered.
32. Mr Ladiges referred the Tribunal to the Austrian registration forms entitled 'Bestatigung Der Meldung' contained at T7 which showed that Ms Kupisz and Mr Dudek were registered in Vienna from the 11 October 2007 despite having entered Austria in April 2007. The penalty for not registering is a possible fine but as Mr Ladiges admitted under cross-examination by Mr Dudek, failure to complete the registration is not evidence of the fact that a person was not residing in Austria at a particular time. Mr Ladiges said that the document is one means of establishing residence.
33. Whilst there is no strict evidentiary onus of proof on an applicant before the Tribunal unless provided for by the relevant legislation, an applicant must carry some responsibility to produce evidence upon which the Tribunal is able to make findings in accordance with the legislation.
34. In the present case the Tribunal needs to be satisfied that the applicant was in Austria and an Austrian resident at the time of lodging her claim. It was the applicant's oral evidence that she joined Mr Dudek in Austria on 27 April 2007 as his carer. On 27 April 2007 Ms Kupisz completed a Centrelink Partner Details Form with respect to Mr Dudek's pension entitlements. She indicated that her home address was Wien-Austria and that she still had a Commonwealth Bank savings account with a balance of $399.00. On Mr Dudek's Centrelink form stamped by Centrelink International Services on 11 May 2007, he wrote on 27 April 2007 that as from that date his estranged wife, Lydia Kupisz, started working as a carer for him and lodged documents for carer payment from Australia in Austria.
35. It was Ms Kupisz's evidence that she and Mr Dudek initially resided at a friend's shack in the country. They then moved to Vienna during the winter period and continued to stay with friends.
36. Whilst there is evidence that Ms Kupisz was in Austria at the time of lodging her claim, the question remains as to whether she was "residing in Austria" at the time. The Bestatigung Der Meldung indicates that Ms Kupisz was a resident at Gumpendorfer Strasse 40/1/9 as at 11 October 2007. The evidence was that prior to that time Ms Kupisz and Mr Dudek did not have a permanent place of abode but relied on the generosity of various friends for accommodation. Should this lack of permanency mean that Ms Kupisz was not therefore a resident of Austria? Ms Kupisz had not registered with the authorities as she was required to do. Had she registered this would have been evidence as to residency but her failure to do so does not mean that she was not residing in Austria.
37. Mr Dudek left Australia on 24 April 2007 and arrived in Austria on 25 April 2007. As from 27 April 2007 Centrelink reduced Mr Dudek's single rate of pension to 1/2 of the family rate on the basis, presumably, that Ms Kupisz was living with him. Ms Kupisz has failed to submit any proof of her accommodation with friends despite being requested by the respondent to do so. At the conclusion of the hearing Mr Dudek indicated that they would provide such evidence if required.
38. Whilst the Tribunal is satisfied that Ms Kupisz was physically present in Austria at the time of lodging her claim, the question remains as to whether she had established residency as the term is generally understood and has been interpreted by the Courts. Ms Kupisz had separated from her husband in May 2005. Whilst she maintained some contact she did not live with Mr Dudek again until 27 April 2007 after being asked by him to care for him. Her application for carer's payment was dated the same day. The claim was received and accepted as lodged on 8 May 2007.
Conclusion
39. The Tribunal is unable to be satisfied on the balance of probabilities that as at the claim date Ms Kupisz had formed an intention to regard Austria as her home. She certainly could not establish a continuity of association with Austria (see Levene v Commissioners of Inland Revenue [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN NSW 147 at 149). 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. As stated above, it is accepted that mere physical presence in a country is not sufficient for there must be evidence of an intention to treat that place as home.
40. Whilst the Tribunal can be satisfied that Ms Kupisz was physically present in Austria at the time of lodging her claim, there is an absence of evidence regarding her intentions at the time. Although Ms Kupisz may very well be able to satisfy the respondent as to her Austrian residency at a subsequent time, the Tribunal is not satisfied on the balance of probabilities that at the time of lodging her claim she was "a resident" of Austria. For these reasons the Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: [Sgd R Hunt]..........................
R Hunt (Administrative Assistant)Date/s of Hearing 18 June 2009
Date of Written Submissions 13 July, 13 October and 6 November 2009
Date of Decision 20 November 2009
Representative for the Applicant Mr Z Dudek
Solicitor for the Respondent Mr B Sparkes, Centrelink Legal Services
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