This was always my key argument... WHAT is too many?
They can't tell you that because there is no such thing under the Act.
1. The frequency and duration of the person's travel outside Australia.
2. The nature of the accommodation used by the person in Australia.
3. The nature and extent of the family relationships the person has in Australia.
4. The nature and extent of the person's employment, business or financial ties in Australia.
5. The nature and extent of the person's assets located in Australia.
6. Any other matter relevant to determining whether the person intends to remain permanently in Australia.
When making a determination about whether a person is 'residing' - in other words 'living' - in Australia, the key point is to establish that Australia is the person's settled or usual place of abode - i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than one country at the same time. In most cases, the balance of a person's ties will weigh more heavily in favour of one country than another.
The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in section 7(3).
1. Frequency & duration of the person's travel outside Australia
A person does not need to be continuously present in a country in order to be residing there. A person holidaying or working temporarily overseas does not necessarily cease to reside in Australia while they are away.
It is necessary to find the reason for being overseas and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside in Australia. For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be for a short duration, there must be a purpose for the absence and there must be a proposed end date for the absence.
Taken in isolation, a 3 year continuous absence would be regarded as an upper limit to still being considered residing in Australia, unless there are special circumstances delaying a return. When looking at the pattern and duration of time spent outside Australia, if a person regularly spends more than 6 months a year outside Australia, then their residence in Australia is questionable.
The purpose of an overseas absence may indicate whether a person continues to reside in Australia. The reason should be consistent with the intended length of the absence. For example, a person working on an 18 month overseas contract posting would still be considered to reside in Australia as long as they have demonstrated ongoing physical ties to Australia and a commitment to return to Australia at the end of the posting.
It is not uncommon for a person to remain overseas for a lengthy period of time but state that they intend to return to Australia to live at some uncertain, future date. In general, when a person states that they are leaving Australia temporarily with the intention of returning to Australia, the person's 'intent' becomes less of a factor as the length of the absence increases. A person's physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
A person who has spent the majority of their time overseas in the last few years and who returns to Australia to claim a benefit will not necessarily be eligible from the day they return to Australia. The person must demonstrate that their physical ties with Australia have been re-established, or are in the process of being established and that they intend to reside again in Australia.
Example 1: Derek is single, aged 56, and has spent the last 2 years in Thailand as he prefers the climate and cost of living. He initially went for a short holiday and when he came back he rented out his furnished property in Australia on an indefinite basis and took on a long term lease of an apartment in Thailand. He is not employed. He keeps in contact with extended family by phone and has a return trip booked to Australia for medical treatment. He has to renew his Thai visa every year and does not consider himself to be a resident of Thailand because he is not eligible for a permanent visa there. He plans to return to Australia one day and for this reason has not sold his house.
Derek's argument that he does not have a permanent visa to stay in Thailand does not override the fact that he spends the majority of his time living in Thailand. Based on the duration of his absence and the fact that his plans to return to live in Australia are vague, at this point in time he is considered to be residing in Thailand.
Example 2: John and Belinda are both retired and have rented out their home in Australia for 2 years while they are in Europe. Their vehicle is on loan to John's brother in Australia who is looking after their furniture. They have purchased a townhouse in Perugia in Italy for their daughter who will be studying at a nearby university for 4 years and they see it as a good investment. They plan to have an extended holiday in Europe after their daughter has settled into her first year of study. They have a firm plan to return to Australia at the end of the 2 years as John expects to be doing contract work for his previous employer. Due to the fact that their plans in Europe are for a defined period and a short term purpose and there is other supporting evidence, they are considered to still be residing in Australia.
2. Nature of the accommodation used by the person in Australia
People who spend considerable time overseas will need to provide evidence that they still maintain strong connections to Australia. One consideration is the nature of the accommodation used by the person in Australia and overseas. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country and that they have made arrangements for an extended period of accommodation in Australia. If the accommodation circumstances are the same in both countries then more weight should be given to the nature of the accommodation where they spend the majority of their time.
Having legal title to a house that a person ordinarily lives in is a good indication that a person resides in that country. If the person pays rent for public or private housing this is also a good indication that the person intends to live in that country. In such cases the term of the lease may be a good indicator of how permanent their accommodation is.
In general, shared or hotel accommodation is considered temporary and is a low indicator that the person resides in that country. However it needs to be recognised that many people receiving a social security payment have very few assets and do not have formal living arrangements. For example in some cases informal shared accommodation (e.g. with family) is a normal and indefinite arrangement. The lack of formal living arrangements simply means the other criteria at SSAct section 7(3) have greater significance.
Example 1: Pam lives in rented accommodation in the UK and stays with adult children in Australia when she returns to visit family. She is retired and has only a few personal items, some of which are in each location. She intends to keep travelling between Australia and the UK and sees herself resident of both countries. In the last 2 years she has spent equal time in both countries. Pam has been determined to be a resident of the UK due to the greater weight on her long-term housing in the UK and other factors being equal.
Example 2: Kevin sold his home in Australia 6 years ago and lived in Fiji with his second wife who inherited the house from her parents. He separated from her when she decided not to come to Australia to live. Kevin is staying with his adult children in different parts of Australia and hasn't decided where exactly to settle but has transferred money back to Australia to buy a house in the near future. In the last year he has only been outside Australia briefly to visit his daughter from his second marriage. He stays in a hotel when back in Fiji. Although Kevin now uses short-term accommodation in both countries, he is considered to be now residing in Australia as a former resident, based on his demonstrated intention to settle in Australia, his transfer of assets, his family relationships and the length of time he has now been back in Australia.
3. Nature & extent of the family relationships the person has in Australia
Another factor that should be used to indicate what country the person is residing in is the nature and extent of the person's family relationships in Australia and overseas.
The term family member is not defined in SSAct section 7(3), however in general it will include the person's spouse, children, parents, brother, sister etc.
Just having a family member in a country does not constitute strong evidence that the person is residing in that country. In order to determine the level of connection to a family member the main guide is to look at how much time the person spends with them in Australia or overseas.
Strong weight should be given to where the person's immediate family is residing, or where the person is providing a significant level of care for a member of their family or where the person spends the most amount of time with their family. Conversely, having family in Australia where a person merely maintains a casual relationship over the phone or internet does not constitute significant ties to those family members. Similarly communicating with family in other parts of the world does not make that person a resident of those countries.
In cases where the person's immediate family such as a spouse and children live overseas and only extended family live in Australia, more weight should be given to the fact that the person's immediate family is overseas. Generally a person would be regarded as having stronger ties to their dependent children than to other family members they may have caring responsibility for. To make a decision on where a person lives it is necessary to look at where their partner and children are and how settled they are there. In some cases a person may have 2 families, one being from a previous relationship. In these situations, the focus must be on the family that the person is spending more time with.
Some people will not have a family or will have lost connection with members of their family. In these situations the person will need to rely on the other factors listed in SSAct section 7(3) to establish their residence in Australia.
Example 1: Anna left Australia to marry in England 8 years ago and since then has returned to have a baby and stay with her parents twice for 3 months each time. She is now separated from her husband but is remaining in England so that he can have access to see the children easily. Anna states she intends to return to Australia but due to her financial situation and having to remain in the UK because of her joint custody arrangements for her children, she has not been able to do so as yet. When she returns to Australia she travels on a return ticket because this is a cheaper option than purchasing a one way ticket. Anna is considered to be residing in the UK due to all the indicators including her dependent children in the UK.
Example 2: Aisha was born in Malaysia and immigrated to Australia with her husband and young children. Their children were raised in Australia but have now moved back to Malaysia to live. Since her husband died Aisha has lived in Australia by herself in the house that she owns. She hasn't worked since raising her children, spends winters in Malaysia each year for the climate and to be with grown up children, and is considering moving back to Malaysia (so they can support her when she's older) but has not yet done so. A decision has been made that Aisha is residing in Australia at this point in time, despite her only family living outside Australia, due to the weight of other factors.
4. Nature & extent of the person's employment, business or financial ties in Australia
If the person is employed or self-employed, their place of employment or their main place of business is a good indication of where the person resides.
The nature and extent of the employment of the person's partner is also a factor in terms of the person's family ties. Therefore, if the person is a member of a couple, it is also necessary to find out where the person's partner is employed and whether their employment is permanent or temporary as this will influence where the person chooses to reside.
Financial ties such as business investments in Australia can be an indicator of where the person is living. However, given the nature of global banking today, simply having an investment in Australia is, by itself, a weak indicator of where the person is residing. Having a bank account in Australia will carry no weight as it is relatively easy to open an account without the person being physically in Australia.
Care should be taken to ensure that poverty and lack of employment are not counted against a person's claim to be residing in Australia. The lack of employment, business or financial ties simply means the other criteria at SSAct section 7(3) have greater significance.
Example 1: Kenji obtained a permanent visa to live and work in Australia and arrived in Australia by himself for a couple of weeks to activate his permanent visa and to investigate possible job prospects in Australia. He returned to Japan as he was not successful in securing employment and remained in Japan for another 6 months. He would not be considered to be residing in Australia yet as he has not made any permanent arrangements to settle in Australia.
Six months later he and his wife put their house on the market in Japan and Kenji resigned from his job in Japan. They returned to Australia and took out a one year lease in Sydney, found employment and brought money and possessions over from Japan. During their first year in Australia their first child was born.
By the end of the year their house had not sold, Kenji's employment contract had ended and they all went back to Japan for an unknown duration.
During the one year they spent in Australia they can be determined to be residing in Australia. However upon their most recent departure they ceased to reside in Australia due to the weight of evidence including Kenji's employment.
Example 2: Charmaine is receiving FTB and has advised that she, her husband and children will be leaving Australia for a 3 year stint in the Philippines where her husband has secured a contract with a Philippine company. Her husband has resigned from his position in Australia and they have given up their rented accommodation in Australia. They plan to take leased accommodation in the Philippines, the children will attend the local school in Manila and Charmaine hopes to do volunteering for an aid agency.
From the date Charmaine and her family depart Australia they are considered to be residing in the Philippines due to the length of the contract period, the strong community ties they plan to develop in the Philippines and their lack of remaining ties to Australia, other than an intention to return to Australia some time after the 3 year employment contract has ended.
5. Nature & extent of the person's assets located in Australia
Owning assets in Australia may also assist in the determination that a person is residing in Australia. However, by itself this would not be a conclusive determinant. If a person owns a house which has been rented out for a short period this could indicate that the person is only overseas temporarily and intends to return to Australia. A person may also be temporarily keeping their furniture or personal items such as clothes in storage, which is another indicator that they are only overseas temporarily. Conversely the sale or gifting of assets such as a car, furniture, or family home prior to leaving Australia, would be a strong indicator that the person has left Australia to live overseas for an extended period of time.
Owning assets for investment purposes may not necessarily indicate that the person is residing in Australia. The key is to establish the extent of a person's assets in Australia and whether the presence of these assets in Australia indicates that they have an ongoing connection to Australia. In many cases because of lack of income and poverty a person will have only very limited assets either in Australia or overseas. In these cases more weight should be placed on the other factors listed in section 7(3).
Example 1: Monique was born in Switzerland and was living there when she met and became engaged to an Australian man Evan who had been living and working in Switzerland for 2 years. She took leave without pay from her employer in Switzerland (but did not resign) and accompanied Evan to Australia on a tourist visa when his father was critically ill. While here Evan's father died and Evan inherited his father's estate including the business and substantial real estate investments. Although Monique only came to Australia for a short visit she now expects to be staying for several months longer while Evan looks after his father's business. They have a rental apartment in Switzerland and both Evan and she are planning to go back to Switzerland to resume their jobs when they can finalise the estate and find a manager for the business. Despite Evan's inherited assets in Australia, Monique and Evan are both considered to be residing in Switzerland due to their ties in Switzerland and the temporary nature of their visit to Australia.
Example 2: Marjory has been in Vietnam for a year while her husband is receiving health treatment there. They are staying in leased accommodation and gave up their leased accommodation in Australia. They sold their furniture and car to help finance the trip. All Marjory's family live in Australia and she can't wait to get back as she has not been able to participate in the care of her niece as usual. The fact that the couple no longer have assets in Australia does not overturn the weight of the other evidence - in particular the purpose and duration of their trip to Vietnam and the fact they have not built up any assets in Vietnam. The couple are considered to still be residing in Australia.
6. Any other matter relevant to determining whether the person intends to remain permanently in Australia
The term 'any other matters' includes the person's stated intention and any other evidence that doesn't fit under the other criteria, for example whether the person is prevented from returning to Australia because of custody laws in the country they are in.
Evidence to support the person's intention would include the purpose of the travel - for example overseas travel may be for the purpose of pursuing a contract of employment for a specified period time, or receiving medical treatment, or caring for someone. This type of purpose would in isolation suggest the absence is temporary but the other criteria should also be evaluated before making a determination.
The only time a decision would be based solely on the person's intention (and evidence of that intention) is where they have no ties under any of the other factors either in Australia or overseas - for example newly arrived refugees. In these cases there are likely to be valid reasons why the person has not yet established new ties in Australia or fully broken their ties in their previous country.
In the case of former residents, all the factors under section 7(3) should be considered to determine both whether the person can be said to have been residing in Australia during their absence and whether they are now residing in Australia on their return.
In general, when a person states that they are leaving Australia temporarily with the intention of returning, the person's 'intent' becomes less of a factor as the length of absence increases. A person's physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
It is also worth noting that a person claiming Age may have plans to retire overseas. This does not automatically mean that they are not residing in Australia at the time of their claim. The issue is whether the person can, at the time of the decision, be said to be residing in any other country.
Example 1: Roger sold his home in Australia 2 years ago and purchased in the UK where his wife and adult children live. He has one adult child in Australia. He previously worked in Australia. He receives an allocated pension from his Australian super fund. He has kept an Australian bank account open with minimal funds in it but also maintains a UK bank account. His car is on loan to his son here but his and his wife's furniture and other car are in the UK where his wife still works. He resigned from his job in the UK after 2 years and returned to Australia and claimed Age, stating he intended to resettle here and was only temporarily staying with his son. The weight of evidence including his wife's place of employment, usual accommodation and the location of his assets support the decision that he is still residing in the UK.
Example 2: Max is an Australian citizen but has been living and working in the UK for 10 years. He left his wife and children there to return to Australia to look for work, after he was made redundant due to a downturn in the economy. His family are renting in England and he is staying in temporary accommodation in Australia until he is able to find work and obtain his own rented accommodation. Max has been applying for jobs in most capital cities as he intends to live wherever he finds employment. He has also made arrangements to have his overseas qualifications recognised in Australia. He plans to bring his family and personal effects over if/when he has secured employment in Australia. The actions Max has taken to try and find employment in Australia indicate that he does intend to reside in Australia, therefore he can be considered to have recommenced living in Australia despite his family still being overseas.
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