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Post by Banker on Feb 12, 2011 15:19:28 GMT 7
Are there any members of the forum in Australia at this time who could contact the Immigration Dept and ask them about the Law on Australian Residency and try to get something in writing.
The only thing I can find on the Immigration site is about Immigrants and refugees. I am talking about Australian citizens.
Perhaps there is another Government Dept responsible for this I Don't Know??? but i would like to find out If there is anything concrete on this matter as per the Australian Constitution.
CheersBanker
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Post by Banker on Feb 12, 2011 17:46:24 GMT 7
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Post by Banker on Feb 12, 2011 18:45:50 GMT 7
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Post by spaceyone on Feb 14, 2011 10:00:52 GMT 7
This is the Permanent Residents Law As per WikiPedia. I note on the google page it said it corresponds with social security law, so I will post that next for comparisson. Australian permanent residents are residents of Australia who hold permanent residency visas but are not citizens of the Commonwealth of Australia. Holders of permanent residency visas may remain in Australia indefinitely. A 5-year initial visa, which corresponds to the underlying migration scheme, is granted alongside the permanent residency. Until the initial visa expires, the visa holder may leave and re-enter Australia freely. A notable feature of the permanent residency visa is that, even after the initial visa expires, the holder is entitled to stay in Australia indefinitely without breaching immigration regulations. After the initial visa expires, if the holder wishes to continue to travel to and from Australia as a permanent resident, they must obtain a Resident Return Visa (RRV). However those who live for too long outside Australia may lose their permanent resident status. Permanent residency may be revoked at the discretion of the Minister for Immigration and Citizenship. However this does not normally happen other than in cases of criminal misconduct. At present, there are two programs to grant permanent residency. "Migration Program" is mainly for skilled migrants, and has made available 120,000 visas for year 2004-2005. "Humanitarian Program" is mainly for refugees seeking permanent residency, and has made available 13,000 visas for year 2004-2005. Most permanent residents are eligible to become citizens after a waiting period.[4] When the waiting period is complete, the process of sitting the citizenship test and attending the ceremony will add an additional three to twelve months. Permanent residents enjoy many of the rights and privileges of citizens, including access to free or subsidised legal and health services and education. They do not have the right to vote in federal elections, but some states allow permanent residents from Commonwealth of Nations countries to vote in State and local government elections. Some citizens of Commonwealth of Nations countries who were enrolled to vote on 25 January 1984 are entitled to retain voting rights. Citizens of New Zealand are allowed to enter and remain in Australia indefinitely under the Trans-Tasman Travel Arrangement, being granted a Special Category Visa on arrival, but must obtain a proper permanent residency permit if they arrived after 26 February 2001 and wish to enjoy the privileges of permanent residents. More at link: en.wikipedia.org/wiki/Australian_resident
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Post by Banker on Feb 14, 2011 15:28:00 GMT 7
Spaceyone, thank you for that but everything I have found on the internet dealing with Residency is linked to immigrants.
I am trying to find a law which deals with Residency and those people that are born in Australia or are Australian Citizens.
Cheers Banker
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Post by spaceyone on Feb 14, 2011 17:13:24 GMT 7
Sorry, my computer died earlier. The link I had to the social security laws of residency did not work, so have to chase that one some more. However, even though this is from the Immigration website, it might link you to more information on the laws relating to Australian citizens. Learn about citizenshipMain content Before 26 January 1949, the status of Australian citizen did not exist, and people born in Australia were British subjects. The legal concept of Australian citizen was created on 26 January 1949 with the enactment of the Nationality and Citizenship Act 1948, now known as the Australian Citizenship Act 2007. On that date, people born in Australia became Australian citizens automatically, whether they were in Australia or outside Australia. Available topics Citizenship test Resources for schools Law and policy Facts and statistics Audio visual features Publications www.citizenship.gov.au/learn/
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Post by spaceyone on Feb 14, 2011 17:17:24 GMT 7
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Post by spaceyone on Feb 14, 2011 17:25:31 GMT 7
Nationality law Legal status of person Nationality law is the branch of law concerned with the questions of nationality and citizenship, and how these statuses are acquired, transmitted, or lost. By custom, a state has the right to determine who its nationals and citizens are. Such determinations are usually made by custom, statutory law, or case law (precedent), or some combination. In some cases, determinations of nationality are also governed by public international law—for example, by treaties on statelessness and the European Convention on Nationality. Broadly speaking, nationality law is based either on jus soli or jus sanguinis, or on a combination of the two. Jus soli (Latin: the law of the soil) is the principle by which a child born within a country's territorial jurisdiction acquires that country's nationality. Jus sanguinis (Latin: the law of the blood) is the principle by which a child acquires the nationality of his or her parents. Today, most if not all countries apply a mixture of these two principles: neither granting citizenship to everyone born within the country's jurisdiction, nor denying citizenship to the children born abroad. [edit]International Treaties International law generally recognizes the right of states to set their own policy concerning nationality. Nevertheless, there are a number of international treaties that are relevant to nationality law. See also Citizenship Nationality Jus soli Jus sanguinis Multiple citizenship Passport Immigration law Political asylum Human migration en.wikipedia.org/wiki/Nationality_law
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Post by Banker on Feb 15, 2011 7:08:16 GMT 7
Are there any members of the forum in Australia at this time who could contact the Immigration Dept and ask them about the Law on Australian Residency and try to get something in writing. The only thing I can find on the Immigration site is about Immigrants and refugees. I am talking about Australian citizens. Perhaps there is another Government Dept responsible for this I Don't Know??? but i would like to find out If there is anything concrete on this matter as per the Australian Constitution. CheersBanker Thought I would give this a bump as there are some members in Australia at this time.
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Post by Banker on Feb 15, 2011 16:19:01 GMT 7
working on it banker The only thing government does quickly is rush through damaging legislation AND INCREASE THEIR OWN WAGES
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Post by fedup on Sept 30, 2013 2:07:43 GMT 7
Australian residence - parent or non-parent carer 1.6.1 Version 3.0, Last updated 22 November 2012 8:30am Context It is necessary for the Registrar to make a determination about whether a parent is a resident of Australia for a number of purposes relating to provisions of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.
Legislative references Sections 10, 12, 25 and 25A Child Support (Assessment) Act 1989 Section 4 Child Support (Registration and Collection) Act 1988 Sections 6, 7A(2) Income Tax Assessment Act 1936 Explanation It is necessary for the Registrar to make a determination about whether a parent is a resident of Australia in order to determine, among other things:
whether an application for administrative assessment is properly made and able to be accepted (see Chapter 2.1.1 for more information) whether the appropriate income rules are being used to determine an assessment (see Chapter 2.4.4 for more information) whether an overseas maintenance liability can be registered (see Chapter 3.6.2 for more information), and whether a terminating event has occurred (see Chapter 2.10.3 for more information). A person is a 'resident of Australia' for the purposes of the Assessment Act and the Registration and Collection Act if they are a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (section 10 Assessment Act, section 4 Registration and Collection Act and section 6 Income Tax Assessment Act).
However, a person is not a resident of Australia for the purposes of the Assessment Act if they are a resident of Norfolk Island, the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island (section 10 Assessment Act, section 7A(2) Income Tax Assessment Act).
For the purposes of the Registration and Collection Act only, the definition of a resident of Australia does not include a person who is a resident of a reciprocating jurisdiction (section 4 Registration and Collection Act). See Chapter 1.6.3 for more information about when a person is considered to be a resident of a reciprocating jurisdiction.
The Registrar will apply the same tests as the Australian Taxation Office when it decides whether a person is a resident of Australia for child support purposes. These tests are summarised below. More information in relation to these tests is available on the Australian Taxation Office website.
The primary test is whether the person resides in Australia. Where a person has always lived in Australia and continues to live in Australia they will clearly be a resident of Australia.
Australian resident leaving Australia Where a person who was an Australian resident leaves Australia, the Registrar will consider whether the person continues to be a resident of Australia according to:
the ordinary meaning of 'resident', or the statutory domicile and permanent place of abode test, or the statutory superannuation test. Non-resident entering Australia Where a person who was not previously a resident of Australia enters Australia, the Registrar will consider whether the person has become a resident of Australia according to:
the ordinary meaning of 'resident,' or the statutory 183 day test. Ordinary meaning of 'resident' The word 'resides' has its ordinary meaning for this test. The Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time', and the Shorter Oxford English Dictionary defines it as 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place'.
Australian resident leaving Australia When considering whether a person has ceased to be a resident of Australia according to the ordinary meaning of the word 'resides', the Registrar will take into account the person's intention in going overseas and the length of their intended stay overseas.
A person who usually resides in Australia but is overseas on holidays continues to reside in Australia during their absence.
Where it is not clear that the person who has left Australia continues to be a resident of Australia according to ordinary concepts of residency, the statutory tests will be considered.
Non-resident entering Australia When considering whether a person who was not previously a resident of Australia has become a resident of Australia according to the ordinary meaning of the word 'resides' the Registrar will take into account:
the person's intention or purpose of presence in Australia and overseas. For example, a migrant who comes to Australia intending to reside here permanently is a resident from arrival. A person who has travelled to Australia for a holiday will generally not be a resident of Australia. the person's family and business/employment ties in Australia and overseas. For example, a person who is in Australia for employment or education purposes is more likely to be considered a resident of Australia. the location of the person's assets and the arrangements they have made to maintain them. the person's social and living arrangements in Australia and overseas. Arrangements that may indicate that a person is residing in Australia may include joining sporting or community organisations, enrolling children in school or committing to a residential lease. the period the person has been physically present in Australia. In most cases a visit of less than six months is not a sufficient time to consider that a person is residing in Australia. The weight given to each factor will vary according to the circumstances of the individual.
Domicile and permanent place of abode test This test generally applies to Australian residents who leave Australia.
A person whose domicile is in Australia continues to be a resident of Australia unless their permanent place of abode is outside Australia.
Domicile A person acquires a domicile of origin at birth. This is the domicile of their parents.
A person whose domicile is Australia will maintain their Australian domicile unless they acquire a different domicile by choice or by operation of law.
Generally, a person will have acquired a new 'domicile of choice' in a particular country if:
they are legally present in a country, and they have formed an intention to remain in that country for the foreseeable future, and for a period that they regard as indefinite. A person will generally not have acquired a new 'domicile of choice' in a country if:
they intend to leave the country in the foreseeable future, for example on the completion of a contract of employment or other project, or they intend to return to their country of origin on the occurrence of some definite future event, such as retirement (even if the timing for their retirement is distant and uncertain). However, a willingness to move to another country if better opportunities present themselves, or a hope of returning to one's homeland at some unspecified time in the future, will not defeat an intention to acquire a new domicile of choice.
Generally, for the Registrar to be satisfied that a person has acquired a new domicile of choice, the person needs to have demonstrated by their actions that they genuinely do have an intention to reside in the new country indefinitely—for example obtaining a migration visa or citizenship in the new country.
If a person's domicile is outside Australia they will not be considered to be a resident of Australia under this test, and there is no need to consider the 'permanent place of abode' part of the test. If the person's domicile is Australia, their permanent place of abode needs to be considered.
Permanent place of abode A permanent place of abode does not have to be 'everlasting' or 'forever'. A person who intends to return to live in Australia in the foreseeable future can still set up a 'permanent place of abode' elsewhere. If a person whose domicile is in Australia is residing elsewhere, the Registrar will take into account the following factors when deciding if that other country is their permanent place of abode:
the intended and actual length of the person's stay in the overseas country:
The duration of a person's stay overseas is not conclusive, and must be considered in conjunction with other factors. As a broad rule of thumb a period of two years or more may be regarded as a substantial period.
the person's intention to return to Australia at some definite point in time or to travel to another country:
Generally if a person has an intention of returning to Australia at the end of a 'transitory' stay overseas, they will not be considered to have established a permanent place of abode outside Australia. Whether a stay overseas is 'transitory' depends on all the circumstances, but as a general rule of thumb a stay of less than two years may be considered 'transitory'.
whether the person has established a home outside Australia:
If the person has established his or her home in an overseas country (e.g. purchased a house or apartment to live in or entered into a long-term lease on a home), this tends to show the place of abode in the overseas country is permanent.
whether the person has abandoned their residence or place of abode in Australia:
If the person maintains a home in Australia that is available for them to live in while they are outside Australia, it may tend to suggest (in conjunction with other factors) that the person remains resident in Australia. If the person has sold or rented out their home in Australia it may tend to suggest that the person has established a permanent place of abode overseas.
the duration and continuity of the person's presence in the overseas country:
If the person has no fixed or habitual place of abode overseas but moves, for example, from one country to another, this may tend to suggest that the person has not established a permanent place of abode outside Australia.
the durability of the person's association with a particular place in Australia:
It is not necessary for a person to close all Australian bank accounts in order to establish a permanent place of abode overseas. For example, if a person moves their 'everyday use' accounts to the overseas country but maintains a long term investment account in Australia they may still be able to establish, on the basis of other factors, that they have a permanent place of abode outside Australia.
If the person's children are enrolled at and attend school in the overseas country, this may tend to suggest that the person has established a permanent place of abode overseas. If the children continue their schooling in Australia despite the presence of adequate educational facilities in the overseas country this may tend to suggest that the person has not established a permanent place of abode outside Australia.
The weight to be given to each factor will vary with individual circumstances of each case and no single factor is conclusive.
Superannuation test This test applies to current Commonwealth Government employees.
The test states that a person is a resident of Australia if the person is:
an eligible employee under the Superannuation Act 1976, or a person who is a member of the superannuation scheme established under the Superannuation Act 1990. The test is designed to ensure that Commonwealth Government employees working at Australian posts overseas are still Australian residents for tax purposes. If a person is a resident of Australia under this test the person's spouse and any children under 16 years are also Australian residents.
The effect of this test is that current Commonwealth Government employees who are members of the Commonwealth Superannuation Scheme (CSS) created by the Superannuation Act 1976 or the Public Sector Superannuation Scheme (PSS) created by the Superannuation Act 1990 are residents of Australia.
A person who is not a current Commonwealth Government employee is not a resident of Australia pursuant to this test.
This test does not deem a person who is a member of the Public Sector Superannuation Accumulation Plan Scheme (PSSap) created by the Superannuation Act 2005 to be a resident of Australia.
183 day test Under this test, a person who is actually present in Australia for more than half the income year (i.e. Australian financial year), whether continuously or intermittently, is a resident of Australia unless:
the person's usual place of abode is outside Australia, and the person has no intention to take up residence in Australia. Note: The phrase 'usual place of abode' does not have the same meaning as 'permanent place of abode'. The terms 'usual' and 'abode' should be given their ordinary and natural meanings.
The shorter Oxford Dictionary gives the following definitions:
usual means current, ordinary, customary, and abode means habitual residence, place of habitation, house or home. The 183 day test must be applied to each income year separately, and for that reason it cannot be used to determine a person's residency status beyond the end of the particular income year being considered.
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Post by fedup on Oct 4, 2013 15:04:23 GMT 7
Immigration has one set of rules,the tax office another and centrelink another still.In regards residency.
Confused yet?
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Post by fedup on Oct 4, 2013 15:09:08 GMT 7
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Post by fedup on Oct 4, 2013 15:26:15 GMT 7
Guide to Social Security Law Version 1.198 - Released 20 September 2013 Keyword Index Act Section Index FA Guide | PPL Guide SS Guide Contents Using the Guide What's New 1 Key Terms & Principles 2 Claim Verification 3 Qualification & Payability 4 Income & Assets 5 Payment Rates 6 Reviews, Debts & Payment Recovery 7 Portability & CFP 8 Administration Act Provisions 9 Visas, Entitlements & Assurances of Support 10 Australian Social Security Agreements 11 Income Management Acronym List Keyword Index Act Section Index Site Map SS Guide Contents - Part 7 - Chapter 7.1
Print this page 7.1.4 Requirements for Former Residents of Australia Receiving a Portable Pension Summary - for Age, DSP, WP, WidB, BVA A person arriving in or returning to Australia (1.1.A.320) must satisfy the Act's definition of Australian resident (section 7(2)) in order to lodge a proper claim for a pension. A former resident who returns to Australia and is granted a pension (Age, DSP, WP, WidB, BVA), or who transferred under SS(Admin)Act section 12 to Age CANNOT take that pension outside Australia if they leave again within 24 months after having again become an Australian resident. The purpose of this legislation is to discourage people from coming to Australia just to get an Australian pension to take back overseas. Exception: The 24 month former resident waiting period does not apply if the person is eligible for financial assistance under the Medical Treatment Overseas Program in respect of their absence from Australia or needs to accompany such a person. Act reference: SSAct section 7(2) An Australian resident..., section 43(1) Qualification for Age pension, section 1220 No portability where claim based on short residence, section 1218D Extension of person's portability period - life - saving medical treatment overseas Family Assistance, Social Security And Veterans' Affairs Legislation Amendment (2005 Budget And Other Measures) Bill 2006 - Explanatory Memorandum SS(Admin)Act section 12 Deemed claim in certain cases Former residents & residents of external territories (1.1.E.230) When someone, who was formerly an Australian resident, returns to Australia and again becomes an Australian resident and subsequently is granted a pension under the SSAct section 43(1), or transferred to Age under the SS(Admin)Act section 12, on or after 20 September 2000, that pension is not payable outside Australia if the recipient leaves Australia within 2 years of again becoming an Australian resident. Exception: Former residents who were granted their pensions before 20 September 2000 are subject to the old rules of 12 months restriction on portability (unless there are unforeseen circumstances). The same rule applies to someone who has residence in an external territory, comes to Australia for the first time and is granted a pension within 2 years of taking up residence in Australia. When counting the 2 year period, include as separate full days, the day on which the recipient returns to Australia to resume Australian residence and the day on which they leave again. There is no discretionary power to allow portability during the 2 year period. Act reference: SSAct section 43(1) Qualification for Age pension SS(Admin)Act section 12 Deemed claim in certain cases Policy reference: SS Guide 3.1.1 Residence Requirements International social security agreements If a pension is granted under an international social security agreement or a recipient is transferred from one agreement pension type to another, that pension is subject to the portability rules of the agreement. In these cases, 'former resident' provisions do not apply. If a former resident is going to an agreement country and about to have their autonomous pension (1.1.A.360) cancelled because of the operation of SSAct section 1220, they must be informed if there is a possibility of grant or transfer to a similar payment under the agreement. Answering enquiries from former residents If people overseas ask about getting a pension on return to Australia, great care should be taken to give them complete and accurate information about the residence provisions and their subsequent portability entitlements. A claim for pension can be lodged by a former resident ONLY IF, on the evidence available, there is a clear intention to remain permanently in Australia. A person who intends to return to Australia for a 24 month period only would not be an 'Australian resident' as per SSAct subsection 7(2). It is important to inform a recipient that there is NO discretionary power allowing portability of pensions during the first 24 months of resumed Australian residency. However, payment may be suspended for the period of the short overseas absence and does not have to be reclaimed on return to Australia. Act reference: SSAct section 7(2) An Australian resident…, section 1220(1) to (2) No portability where claim based on short residence _______________________________________________________
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Post by Banjo on Oct 4, 2013 15:27:46 GMT 7
You missed Medicare.... None of these departments consider their rules confusing but they seem to spend a lot of time in court and the appeals system defending them. I can tell you now that it's a waste of time going to the SSAT and saying "but the ATO defines residency this way".
Note that the Act is more concerned with ties to Australia than those overseas.
(3) 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.
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