EXECUTORS OF THE ESTATE OF SUBRAHMANYAM v FC of T
Members:SA Forgie DP
Tribunal:
Administrative Appeals Tribunal
MEDIA NEUTRAL CITATION:
[2002] AATA 1298
SA Forgie (Deputy President)
On 26 July, 2000, the applicant, the Executors of the Estate of the late Miss Santha Thevy Subrahmanyam (``the Executors''), applied for review of objection decisions of the respondent, the Commissioner of Taxation (``the Commissioner''). Those objection decisions, dated 27 June, 2000 and 22 August, 2000, were to disallow objections dated 4 May, 2000 against a private ruling (``the Ruling'') dated 24 February, 2000. That Ruling was made in respect of the years ending 30 June, 1995, 1996, 1997 and 1998. The application to the Tribunal was heard and determined by a differently constituted Tribunal on 14 May, 2001 (
Executors of the Estate of Subrahmanyam v FC of T 2001 ATC 2177; [2001] AATA 405). An appeal from that decision was heard and determined by a Full Court of the Federal Court on 19 December, 2001 (
FC of T v Executors of the Estate of Subrahmanyam 2002 ATC 4001; (2001) 116 FCR 180 (Hill, Tamberlin and Emmett JJ). The matter was remitted to the Tribunal to reconsider the Commissioner's objection decisions according to law.
2. At the hearing on remittal, the Executors were represented by their solicitor, Mr Wolfers, and the Commissioner by Ms Gordon. Regard was had to the Appeal Book submitted to the Federal Court (``AB'').
The issue
3. The issue in this case is whether the Estate of Santha Thevy Subrahmanyam is assessable under s. 25(1)(a) the Income Tax Assessment Act 1936 (``1936 Act'') on interest derived by Dr Subrahmanyam in respect of the financial years ending 30 June, 1995, 1996, 1997 and 1998 and under s. 6-5(2) of the Income Tax Assessment Act 1997 (``1997 Act'') on interest she derived in respect of the financial year ending 30 June, 1998. Resolution of the issue depends on whether Miss Subrahmanyam was a ``resident'' for the purposes of the 1936 Act and the 1997 Act. In the context of this case, that will be determined by whether her usual place of abode was outside Australia.
Background
Outline of events preceding request for Ruling
4. Dr Subrahmanyam was a citizen in Singapore where she resided and practised as a medical practitioner. Her brothers and sisters lived variously in Singapore, Malaysia, the United Kingdom and Australia. On 7 September, 1994, she came to Australia to visit
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her brother, Dr Iswaran, who lived in Adelaide. Dr Subrahmanyam had been granted a three month tourist visa.5. On 1 October, 1994, Dr Subrahmanyam entered into a contract to give an option to purchase her house in Singapore. That option was exercised on 14 October, 1994 (AB, page 112). Dr Subrahmanyam arranged to close up her home when she returned to Singapore on 6 November, 1994 (AB, pages 113-114). Under the contract, Dr Subrahmanyam had to give vacant possession on 23 December, 1994. Settlement was late and took place on 6 January, 1995 (AB, pages 128-130). She stored furniture and effects that she had kept in the lounge, dining room, family room, study, office, prayer room and three bedrooms together with three two horse power air- conditioners, crockery, cutlery, linen, clothing and selected kitchen implements in two bedrooms of a three bedroom town house in Johor. The third bedroom was occupied by the caretaker (AB, page 115). Dr Subrahmanyam arranged for her maid to return to Sri Lanka on or about 22 November, 1994 and paid her salary until approximately December, 1994. She left her dog with a gentleman in Johor (AB, pages 114-115).
6. Dr Subrahmanyam had suffered from a renal condition prior to her visiting her brother in September, 1994. She received treatment for that condition in Adelaide. From time to time, Dr Subrahmanyam travelled from Australia when she was accompanied by either Dr Iswaran or his wife. In all, she made eight such trips and, between 7 September, 1994 and 17 June, 1998, she was absent from Australia for a total of 70 days. The purpose of each trip and the length of time that she was away on each were:
Departure Return Reason
6 November, 1994 23 November, 1994 To renew her Australian visa, meet
friends and relatives including an
uncle to whom she was very close,
an aunt, a sister and two brothers
in Singapore as well as her elder
sister and her family visiting from
Kuala Lumpur. She made arrangements
in relation to her house.
2 February, 1995 8 February, 1995 To renew her visa and to visit
friends and relatives in Singapore.
18 April, 1995 24 April, 1995 To visit Singapore to renew her visa
(in Kuala Lumpur and to visit her elder sister in
from 19 April to Kuala Lumpur.
23 April, 1995)
8 July, 1995 17 July, 1995 To visit Singapore to renew her visa
(in Kuala Lumpur and to visit her sister and two
from 13 July to brothers and then to visit her elder
16 July, 1995) sister in Kuala Lumpur.
9 November, 1995 25 November, 1995 To attend the 70th birthday celebrat-
ions for her spiritual leader, Sri
Sathya Sai Baba in Puttapathi in
southern India.
14 March, 1996 20 March, 1996 To attend the wedding of her Uncle's
son and to visit relatives and friends
in Singapore.
16 August, 1996 25 August, 1996 To attend the 14th day of the death of
(in Kuala Lumpur her late Uncle in Singapore and an
from 20 to 23 associated religious ceremony, dispose
August, 1996) of furniture and effects stored in
Johor and to visit her relatives and
friends in Singapore and Malaysia.
31 May, 1997 9 June, 1997 To attend the wedding in Kuala Lumpur
(in Kuala Lumpur of a close relative of the wife of her
from 3 June, 1987 brother, Dr Iswaran and to visit rela-
to 8 June, 1987) tives and friends in Singapore and
Malaysia.
(AB, pages 113-114)
7. After each of the first four trips, she obtained a renewal of her tourist visa. She was advised, however, that she would not, during the twelve months following her return from her fourth trip on 17 July, 1995, be granted a tourist visa to re-enter Australia. On 2 August, 1995, Dr Subrahmanyam applied for a temporary retirement visa. On 26 June, 1996, her application was granted and she was permitted to remain in Australia for a period of four years.
8. During her time in Adelaide, Dr Subrahmanyam lived with Dr Irawan at his home. Dr Irawan assisted her each night to undergo dialysis at home. On 17 June, 1998, Dr Subrahmanyam died leaving a substantial balance in her bank account. The proceeds of the sale of her house in Singapore, being in the order of $3.65 million, had been paid into that account in 1994. Interest had been paid on the proceeds and withholding tax deducted from that interest pursuant to Division 11A of the 1936 Act.
9. During each year of income, Dr Subrahmanyam was present in Australia for the number of days over the periods shown in the following table:
Year ending Dates in Australia No. of Days Total
Y/e 30.6.95 07/09/94-06/11/94 60
23/11/94-02/02/95 71
08/02/95-18/04/95 69
24/04/95-30/06/95 66 266
Y/e 30.6.96 01/07/95-08/07/95 6
17/07/95-09/11/95 115
25/11/95-14/03/96 110
20/03/96-30/06/96 101 332
Y/e 30.6.97 01/07/96-16/08/96 45
25/08/96-31/05/97 275
09/06/97-30/06/97 20 340
Y/e 30.6.98 01/07/97-17/06/98 350 350
(date of death)
(Commissioner's submission drawn from AB documents, pages 13-14)
The steps leading to the Ruling
10. On 24 June, 1999, the Commissioner wrote to the Executors setting out a non-binding advice in response to a request by the Executors whether Dr Subrahmanyam was a resident of Australia and, if so, from what date. The Commissioner advised that Dr Subrahmanyam was a resident from the date she first arrived in Australia i.e. 7 September, 1994.
11. The Executors then sought a binding ruling in the form of a Ruling pursuant to Part IVAA of the Taxation Administration Act 1953 (``TA Act''). They did so in a letter dated 16 August, 1999 on the question whether ``interest income derived by Miss Subrahmanyam for the period from 7 September 1994 to the date of her death on 17 June 1998 is subject to tax under either section 25(1) of the... [1936 Act] or section 6-5 of the Income Tax Assessment Act 1997'' (AB, page 22). A number of documents were enclosed with that letter (AB, pages 22-101). On 25 November, 1999, the Commissioner requested the Executors to provide certain information. He did so pursuant to s. 14ZAM of the TA Act. The Executors' solicitors responded to most of the
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Commissioner's request in a letter dated 7 January, 2000 (AB, pages 111-181). On 8 February, 2000, the solicitors completed the response and responded also to a further letter from the Commissioner dated 11 January, 2000 from the Commissioner (AB pages 185-193).12. On 24 February, 2000, the Commissioner issued a Ruling applicable to the years ending 30 June, 1995, 1996, 1997 and 1998. The Ruling answered in the affirmative the question whether the Estate of Santha Thevy Subrahmanyam is assessable under s. 25(1)(a) of the 1936 Act on interest derived by Dr Subrahmanyam for each of the years ending 30 June, 1995, 1996 and 1997 and under s. 6-5(2) of the 1997 Act on interest derived for the year ending 30 June, 1998.
13. On 26 April, 2000, the Executors lodged a Notice of Objection against the Ruling and lodged a revised Notice of Objection on 4 May, 2000. On 27 June, 2000, the Commissioner disallowed the Executors' objections for the years ending 30 June, 1996, 1997 and 1998. He disallowed their objection for the year ending 30 June, 1995 on 22 August, 2000.
The scope of the Tribunal's review
14. Part IVAA of the TA Act provides for private rulings to be made by the Commissioner. Section 14ZAF provides that:
``A person may apply to the Commissioner for a ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to the person in respect of a year of income in relation to an arrangement.''
15. An ``arrangement'' includes ``an arrangement that has been carried out'' (s. 14ZAI(a)). In making a private ruling in accordance with s. 14ZAR, the Commissioner must set out in his written notice of it the arrangement to which the ruling relates (s. 14ZAS(1)). Provided an assessment has not been made in relation to the rule in respect of the year of income and in relation to the arrangement and provided the private ruling does not relate to withholding tax that has become due and payable, a rulee may object against it pursuant to Part IVC of the TA Act. For the purposes of that Part, the private ruling is a tax decision (s. 14ZAZA).
16. As held by the Full Court of the Federal Court in
FC of T v McMahon & Anor 97 ATC 4986; (1997) 79 FCR 127 (Lockhart, Beaumont and Emmett JJ), the Tribunal is limited to making a decision upon the basis of the arrangement, including the assumptions, identified by the Commissioner in the private ruling. It cannot redefine the arrangement. The only question for the Tribunal is whether the Commissioner's view as to the application of the law to that arrangement is correct. This aspect was considered again by the Full Court in
FC of T v Executors of the Estate of Subrahmanyam 2001 ATC 4001; (2001) 116 FCR 180. Hill J, with whom Tamberlin J agreed, said that the Tribunal was clearly correct in accepting that it was entitled to have regard to the whole of the material in the Executors' request and letters including the attachments (ATC 4003; FCR 183). In his Notice of Private Ruling, the Commissioner had identified the arrangement as that set out in the Executors' letters of 16 August, 1999, 7 January, 2000 and 8 February, 2000 (AB, page 195).
Outline of the legislative provisions
17. Section 25(1)(a) of the 1936 Act provides that the assessable income of a taxpayer shall include ``the gross income derived directly or indirectly from all sources whether in or out of Australia'' ``where the taxpayer is a resident''. The word ``resident'' is defined in s. 6(1):
```resident' ... means:
- (a) a person, other than a company, who resides in Australia and includes a person:
- (i) whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia;
- (ii) who has actually been in Australia, continuously or intermittently, during more than one- half of the year of income, unless the Commissioner is satisfied that his usual place of abode is outside Australia and that he does not intend to take up residence in Australia; or
- (iii)...
- (b)...''
18. Section 6-5(2) of the 1997 Act is similarly worded to s. 25(1)(a) but makes reference to an Australian resident. The difference is of no consequence for an ``Australian resident'' is defined in s. 995-1(1) to mean ``... a person who is a resident of
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Australia for the purposes of the Income Tax Assessment Act 1936''.19. It is common ground between the parties that only sub-paragraph (ii) of the definition is relevant. That has two segments. If a person satisfies the requirements of the first segment, he or she is a resident unless the Commissioner is satisfied that he or she satisfies the requirements of the second segment. As the second segment itself has two elements, he or she must satisfy both elements before he or she will not be regarded as a ``resident''. The first segment is that the person has been in Australia, either continuously or intermittently, during more than one half of the year of income. Both parties accept that Dr Subrahmanyam satisfied this segment of the sub-paragraph. The two elements of the second segment are that the person's usual place of abode is outside Australia and that he or she does not intend to take up residence in Australia.
Consideration
20. In this case, the focus has been on whether Dr Subrahmanyam's ``usual place of abode'' was outside Australia and that focus is in the context of the definition of ``resident''. While expressions such as ``place of abode'', ``permanent place of abode'' and ``last known place of abode'' have received some consideration in the courts and in the Tribunal in contexts such as workers' compensation, social security entitlements and taxation, the expression ``usual place of abode'' has received only limited consideration. The words ``usual'', ``place'' and ``abode'' have also received some consideration individually in a variety of contexts. In having regard to the meanings of those words on their own, I am mindful that the meaning to be attributed to a word or expression can be affected by its context and that, as Lord Halsbury said in
Mersey Docks and Harbour Board v Henderson Bros (1888) 13 AC 595:
``It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed.''
(pages 599-600, approved by Barton J in
Lorimer v Smail (1911) 12 CLR 504 at 510)
Even so, it is useful to have regard to the meanings of the individual words and to the meanings attributed to the expression in other contexts before turning to its meaning in the context of the 1936 Act.
21. The word ``usual'' is defined, in so far as it is relevant, to mean:
``2 Ordinarily used; constantly or customarily employed, esp. in a specified capacity; ordinary.... 3 That ordinarily happens, occurs, or is to be found; such as is commonly met with or observed in ordinary practice or experience....''
(The New Shorter Oxford English Dictionary, 3rd edition, 1993)
``... 1. habitual or customary: his usual skill....''
(The Macquarie Dictionary, 2nd edition, 1991)
Again, in so far as it is relevant, the word ``place'' is defined as:
``... 3 A particular part or portion of space or of a surface, whether occupied or not; a position or situation in space or with reference to other bodies.... 4a A residence, a dwelling, a house; a person's home....''
(The New Shorter Oxford English Dictionary, 3rd edition, 1993)
``... 1. a particular portion of space, of definite or indefinite extent.... 4. a space or spot, set apart or used for a particular purpose: a place of worship. 22. a residence, dwelling, or house....''
(The Macquarie Dictionary, 2nd edition, 1991)
The word ``abode'' is defined as:
``... 3 Habitual residence; a house or home.''
(The New Shorter Oxford English Dictionary, 3rd edition, 1993)
``... 1. a dwelling place; a habitation. 2. continuance in a place; sojourn; stay....''
(The Macquarie Dictionary, 2nd edition, 1991)
22. The words are used in the wider context of the definition of ``resident'' in s. 6(1) of the 1936 Act. That is a definition that, in so far as a natural person is concerned, is expressed to mean a person ``... who resides in Australia''. The sub-paragraphs of paragraph (a) of the definition then go on to include persons who may, or may not, ordinarily be regarded as persons who reside in Australia. Therefore, it is necessary to look to the ordinary meanings of ``reside'' to set the sub-paragraphs in their context. In so far as they are relevant, they are:
``... b Dwell permanently or for a considerable time, have one's regular home
ATC 2309
in or at a particular place....''(The New Shorter Oxford English Dictionary, 3rd edition, 1993)
``... 1. to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill....''
(The Macquarie Dictionary, 2nd edition, 1991)
23. Although not concerned with the expression ``usual place of abode'' but with the expression ``usual place of residence'' in the context of s. 103(1) of the Social Services Act 1947, the judgement of Wilcox J in
Hafza v Director-General of Social Security (1985) 60 ALR 674 usefully canvasses a number of the earlier authorities considering both residence and abode. Both of those concepts are found within the definition of ``resident'' in s. 6(1) of the 1936 Act. Before turning to the particular context with which he was concerned, Wilcox J said:
``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 concept was explained in a taxation case,
Koitaki Para Rubber Estates Limited v FC of T (1941) 64 CLR 241 at 249, by Williams J:`The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.'
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place even involuntarily (see
Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248 and
Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place (
Levene v Commissioners of Inland Revenue [1928] AC 217 at 225 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' (see
Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe firstly, that a person may simultaneously be a resident in more than one place, - see the facts of Lysaght and the reference by Williams J to `a home or homes' - and, secondly, that the 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. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as `home', a change of intention may be decisive of the question whether residence in a particular place has been maintained.''(pages 680-681)
24. Wilcox J referred to the case of
Commissioners of Inland Revenue v Lysaght [1928] AC 234 (Viscount Sumner, Lord Atkinson, Lord Buckmaster and Lord Warrington of Cylffe; Viscount Cave LC dissenting). Mr Lysaght had been a resident of England for many years. In 1919 he partially retired and returned to live in the country of his birth, the Irish Free State. He retained a post as adviser to the English company of which he had previously been the managing director and went to England each month for a meeting with the directors. Mr Lysaght remained in England for about a week for consultations, stayed in a hotel and never took his wife. He had no business interests in Ireland except for the management of his estate. His bank account was maintained in Ireland although he had a small account in England. Mr Lysaght claimed exemption from certain tax on the basis that he was neither resident nor ordinarily resident in the United Kingdom. The General Commissioners, and later the Special Commissioners, decided that Mr Lysaght was both resident and ordinarily resident in the United Kingdom for each of two years of income but stated a case for consideration.
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25. Although dissenting from the majority, the speech of Viscount Cave LC and that of Viscount Sumner highlight fundamental tensions in considering the concept of ``resident'' and ``ordinarily resident''. In the case of
Levene v. Commissioners of Inland Revenue [1928] AC 217, Viscount Cave had said:
``The expression `ordinary residence' is found in the Income Tax Act 1806 and occurs again and again in the later Income Tax Acts, where it is contrasted with the usual or occasional or temporary residence; and I think that it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.''
(page 225)
In Lysaght, Viscount Cave said:
``... on the view which in that case I have taken as the meaning of those expressions, there appears to me to be no reason whatever for holding that the respondent is resident or ordinarily resident in this country. It is true that he comes here at regular intervals and for recurrent business purposes; but these facts, while they explain the frequency of his visits, do not make them more than temporary visits or give them the character of residence in this country. That he has a small account at a bank in Bristol - doubtless for use during his visits to this country - and a club in London to which he hardly ever goes, appear to me to be trivial circumstances which cannot affect the decision. If the respondent is held to reside here and to be taxable accordingly, there would appear to be no reason why those many foreigners who periodically visit this country for business purposes, and having concluded their business go away, should not be made subject to a like burden.''
(page 240)
26. Viscount Sumner observed in his speech that:
``Grammatically the word `resident' indicates a quality of the person charged and is not descriptive of his property, real or personal. To ask where he has his residence is often a convenient form of inquiry but only as leading to the question, `then where is he resident himself?'''
(page 244)
In keeping with that thought, Viscount Sumner continued:
``... although setting up an establishment in this country, available for residence at any time throughout the year of charge, even though used but little, may be good ground for finding its master to be `resident' here, it does not follow that keeping up an establishment abroad and none here is incompatible with being `resident here,' if there is other sufficient evidence of it. One thinks of a man's settled and usual place of abode as his residence, but the truth is that in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question. For income tax purposes such meanings are misleading. Residence here may be multiple and manifold. A man is taxed where he resides. I might almost say he resides wherever he can be taxed.''
(pages 244-245)
27. Returning to the context of the 1936 Act, the definition of ``resident'' in the 1936 Act was considered by the Commonwealth Taxation Board of Review in Case No. 56, (1946) 15 CTBR 443 (R.R. Gibson, Chairman and G.J.J. O'Sullivan and A.C. Leslie, Members). The taxpayer took up an appointment on board a ship and placed all of his personal belongings on board with the intention of living on it and without any definite intention of ever returning to Australia to live. The ship was in Australia for short periods during each of the tax years under consideration. The taxpayer had not abandoned his domicile in Australia. Therefore, in view of paragraph (a)(i) of the definition, he was a resident and so subject to taxation unless his permanent place of abode was outside Australia.
28. Mr Gibson considered the dictionary meanings given to ``abode'' and ``place'' and formed the view that, in one of its senses, a ``place of abode'' was a place of habitation or home. The ship was the taxpayer's place of abode because it was the place where he slept, ate, worked and had his recreation. It was immaterial where the ship was moored. It was his permanent place of abode because he was residing on it for an indefinite time and his presence was not merely fleeting. Mr Gibson also considered that the expression ``place of abode'' might be given a broader interpretation and that:
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``... meaning may be a `person's home or dwelling-house or other habitation or the village, town, city, district, county, country, or other part of the world in which a person has his home or dwelling-house or other habitation or in which he habitually resides'. In the broader of these senses the taxpayer's `abode' at the material times was his ship or on his ship, and his place of abode was the particular part of the world where the ship happened to be at any given time. Even applying that sense it could, I think, be held that the tax-payer's permanent place of abode was outside Australia.''
(page 445)
29. Mr Gibson did not see the need to choose one meaning over the other for:
``... The expression in which the term is found is capable of application to a wide variety of circumstances and, taking the view that it was adopted for that very reason, I venture to think it is wide enough to cover the case of any person who, though domiciled in Australia, is living, and continuing indefinitely to live, outside Australia without any definite intention of ever returning there to live. If so the expression is a proper description of the locational circumstances of the taxpayer during the period under review. The adoption of this view would certainly not be productive of any anomaly.''
(page 445)
30. In 1979, the Full Court of the Federal Court in
FC of T v Applegate 79 ATC 4307 (Franki, Northrop and Fisher JJ) considered whether Mr Applegate was a person whose ``permanent place of abode is outside Australia'' within the meaning of paragraph (a)(i) of the definition in s. 6(1) of the 1936 Act. It was accepted that Mr Applegate's place of abode was outside Australia and the focus of the argument was upon the meaning of ``permanent''. Franki J reached the view that:
``... `permanent place of abode outside Australia' is to be read as something less than a permanent place of abode in which the taxpayer intends to live for the rest of his life.
There is nothing in the subsection which requires the intent of the taxpayer to be the critical factor even though it is, of course, a relevant factor. Essentially the question is whether, as a matter of fact the taxpayer's permanent place of abode was outside Australia at the relevant time.
...
The question is one of degree and bearing in mind the association of the phrase `permanent place of abode' with the word `domicile' and the fact that the liability for tax falls to be determined annually in my opinion the learned judge from whose judgment this appeal is brought was correct.
I consider that the learned judge correctly posed the relevant test when he said that `... what is required is that there be a permanent place of abode outside Australia and that the enquiry as to whether there is or not is an objective one, notwithstanding the fact that the intention of the taxpayer in relation to the length of time that he will reside in a place outside Australia is a relevant factor to be taken into account'. Whilst the Commissioner (and presumably the Board of Review) was entitled to look to the events which had happened since the end of the tax year in my opinion the question of the taxpayer's intent as to the length of his stay is no more than a relevant factor to be considered.''
(page 4309)
31. Northrop J observed that one of the dictionary meanings of ``reside'' was ``to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place'' and that a person may reside in more than one country at any one time. Referring to paragraph (a)(ii), his Honour said that it ``... appears to draw a distinction between `usual place of abode' and `residence' but it is not necessary to consider that matter further.'' (page 4313) Northrop J also said that:
``... In any event the extended meaning of `resident' becomes relevant only when, during the year of income under consideration, the taxpayer does not reside in Australia. Paragraphs (a)(i) and (ii) of the definition are complementary provisions enlarging the group of persons who do not reside in Australia but become liable to pay income tax in Australia.''
(page 4314)
32. Fisher J drew distinctions between ``permanent place of abode'', ``home'' and ``usual place of abode'' as well as ``ordinarily resident'':
``To my mind the proper construction to place upon the phrase `permanent place of
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abode' is that it is the taxpayer's fixed and habitual place of abode. It is his home, but not his permanent home. It connotes a more enduring relationship with the particular place of abode than that of a person who is ordinarily resident there or who has there his usual place of abode. Material factors for consideration will be the continuity or otherwise of the taxpayer's presence, the duration of his presence and the durability of his association with the particular place.''(page 4317)
33. With regard to the matters that should be taken into account, Fisher J said:
``It follows that it is in my view proper to pay greater regard to the nature and quality of the use which a taxpayer makes of a particular place of abode for the purpose of determining whether it qualifies as his permanent place of abode. His intentions with respect to the duration of his residence is just one of the factors which has relevance. Obviously if his stay is purely temporary and he intends to move on or return to Australia at some definite point of time this denies the place of abode an essential characteristic of a home, namely durability. Moreover it seems appropriate to view objectively the nature and quality of the use which the taxpayer makes of the place of abode to determine whether it has the characteristics of his fixed place of abode, his home. It is to my mind perfectly consistent with the establishing of a home in a particular place that the taxpayer is aware that the duration of his enjoyment of the home, although indefinite in length, will be only for a limited period. The knowledge that eventually he will return to the country of his domicile does not in my opinion deny him a capacity to make his home outside of his country domicile. Such a conclusion is particularly open in the present circumstances where the taxpayer was not a completely free agent in the choice of when to return, it being a matter for negotiation between him and his employers.''
(page 4317)
34. The expression ``usual place of abode'' was considered in Case N31,
81 ATC 167 (Board of Review, K.P Brady, Chairman and L.C. Voumard and J.E. Stewart, Members) in the context of the definition of a ``living-away- from-home-allowance'' in s. 51A(3) of the 1936 Act. It did so in the wider context of s. 51A(1), which provided that certain amounts were allowable deductions where the assessable income of a taxpayer included ``living-away- from-home-allowance''. The Board referred to dictionary meanings and to the parallel words used in the definition of ``resident'' in s. 6(1) and to Applegate. The taxpayer had left his bed, a wardrobe and some personal possessions in a room of a house that he had shared for fifteen months with two other people in Perth. His television he left with an aunt in Perth. He was sent to Sydney for his employment and, during the thirteen months he remained in Sydney, he lived in two properties. On returning to Perth, he returned to his room, which had been occupied during his absence by another lodger, but remained only a month. He found alternative accommodation in Perth. The Board said in its reasons:
``... In our view, the taxpayer had to possess at the very least some possessory rights in connection with the Perth house in order to advance his claim, but no such rights existed.
25. In the reference (1951) 2 T.B.R.D. 201 Case B47, the No. 2 Board, as then constituted, canvassed the view whether a taxpayer might not have two places of abode leading to examination of the further question as to which of the two might be the more permanent and therefore `usual', but here we consider that the taxpayer's degree of connection with the Perth house was so tenuous as to involve stretching the English language to unpardonable limits to call it his abode at all.
26. The evidence showed that the taxpayer returned to his home State on a number of occasions during his temporary stay in Sydney, and doubtless he regarded Perth in the abstract as his home city, his intention to return there being completely genuine and sincere. However, those considerations fall a long way short of enabling him to call a particular house in Perth his usual place of abode (ref. Cases K64 and H3 supra). We have little difficulty in finding that his usual place of abode for the year of income in question was Sydney.''
(pages 171-172)
35. In Case U110,
87 ATC 663; AAT Case 76, (1982) 18 ATR 3547, Senior Member McMahon, as he then was, considered the same
ATC 2313
question. After observing that ``... Fisher J equated `usual' with both `habitual' and `permanent'...'' in the Applegate case, Senior Member McMahon set out the passage from Fisher J's judgement that I have set out in the previous paragraph. With regard to the case that he had to consider, he said:``19. It seems to me that as a matter of fact the Adelaide home could not, during the year, be said to be the applicant's place of abode. For six of the 12 months it was occupied by another family with their furniture. At no time during that period could the applicant have knocked on the door and demanded that he be allowed to sleep there with his family. He had granted the right of exclusive possession to others. More importantly, he did not, as a matter of fact, sleep there. For the remainder of the period it was empty of both tenants and furniture. Without fanciful hardships, it would not have been possible to stay there during this time - the remainder of the financial year. More importantly, again, the applicant did not in fact do so. A place of abode is more than a place one merely owns. It is a place where one lives. Since 1576, the Shorter Oxford English Dictionary says, abode has meant habitual residence. In that sense, the word `usual' in the statutory phrase is probably unnecessary. After the applicant left the Adelaide house, it ceased to be either usual or any other adjectival place of abode. An applicant must first establish that a place of abode existed in fact before he begins to prove that it is his usual place of abode.''
(ATC 666; ATR 3551)
36. The definition of ``resident'' in s. 6(1) of the 1936 Act was again considered by the Full Court of the Federal Court in
Tanumihardjo v FC of T 99 ATC 5330 (Hill, Tamberlin and Finkelstein JJ). Hill J, with whom Tamberlin and Finkelstein concurred, observed that both the Tribunal and Heerey J on appeal had taken the view that the word ``resides'' in the opening words of paragraph (a) had its ordinary English meaning. In the context of the case, Ms Tanumihardjo had resided in Australia in each year of income in the sense that she had lived here. His Honour continued:
``The inclusory words of the definition clearly in paragraph one extend the ordinary meaning of the word resident to persons domiciled in Australia but subject to the exclusion if the Commissioner is satisfied that the person has a permanent place of abode outside Australia. The second paragraph may or may not relate to persons who, in the ordinary sense of the words, reside in Australia in the year of income. It is arguable that they extend the definition only to persons who do not so reside despite a presence in Australia for the statutory period of more than one half of a year. The alternative view is that the language of (ii) may be intended more to subtract from the ordinary case of a resident, the special case described in (a)(ii) but subject to the exclusory words and thus apply to a person who in the ordinary sense is a resident of Australia.''
(page 5332)
37. Most recently, the definition in s. 6(1) of ``resident'' has been the subject of consideration by the Full Court of the Federal Court in FC of T v Executors of the Estate of Subrahmanyam. Of ``usual place of abode'', Hill J, with whom Tamberlin J agreed, said:
``... Logically, the fact that a taxpayer does not have a usual place of abode within Australia does not mean that the taxpayer necessarily has a usual place of abode somewhere else. To use the language of an English authority, the taxpayer might be a `bird of passage', moving from place to place with no usual place of abode anywhere:
Levene v Commissioners of Inland Revenue [1928] AC 217 at 226; (1928) 13 TC 486 at 501. Prima facie, if such a person were in Australia more than one-half of the relevant year of income, but had not established a usual place of abode here, that person would still be a resident of Australia. The prima facie position would not have been displaced because the Commissioner could not be satisfied that such a person had a usual place of abode outside Australia. Accordingly, the person would be a resident of Australia as a consequence of the second statutory test.''(ATC 4008; FCR 188-189)
38. In addressing the particular case considered by the previous Tribunal, his Honour said:
``... No doubt there could be some cases where, the choice being between two obvious alternative places of abode, a conclusion that a person has not a usual place of abode in Australia would
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necessitate a finding that the person had his or her usual place of abode at the alternative place. However, the present was not a case where there was merely a need to consider which, of two alternative places where the taxpayer had a place of abode, was the usual place of abode. Rather there was a real question here whether the taxpayer in fact had a place of abode outside Australia at all, let alone a place of abode that would qualify as a usual place of abode.34 At no point in its reasons did the Tribunal consider whether the taxpayer had a place of abode in some place outside Australia and, if so, whether that place of abode was the taxpayer's usual place of abode. In failing to consider whether the taxpayer's usual place of abode was in fact Singapore (no other place appears to have been suggested as qualifying as a possible place of abode) the Tribunal failed to ask itself the correct question....''
(ATC 4008; FCR 189)
39. Emmett J said of ``usual place of abode'':
``... The Act appears to contemplate that there will be only one usual place of abode, although it does not necessarily follow that every person must have a usual place of abode. When comparing two places of abode of a particular person, in order to determine whether one is the usual place of abode, it is necessary to examine the nature and quality of the use to which the person makes of each particular place of abode. It is then possible to determine which is the usual one, as distinct from the other or others which, while they may be places of abode, are not properly characterised as the usual place of abode.''
(ATC 4015; FCR 197-198)
40. Having regard to these authorities, there seems to be no clear path that I am required to tread in considering whether Dr Subrahmanyam's usual place of abode was outside Australia for the purpose of paragraph (a)(ii) of the definition of ``resident''. For all that, one or two of the stepping stones on the path are outlined with some clarity. One is that a person may have more than one place of abode. Another is that I must have regard to the context within which I am required to decide the matter. That context is the 1936 Act which levies income tax on income derived during each financial year. In broad terms, income tax is levied only on taxable income derived by a person during each year of income. A person's taxable income is worked out by deducting his or her allowable deductions from his or her assessable income for that year of income. In the case of an Australian resident, assessable income includes ordinary income derived directly or indirectly from all sources, whether inside or outside Australia, together with statutory income derived directly or indirectly from all sources, whether inside or outside Australia. In the case of a non Australian resident, assessable income includes ordinary income derived directly or indirectly from all Australian sources, statutory income derived from all Australian sources and ordinary income and statutory income that is included in his or her assessable income on some basis other than its having an Australian source.
41. In view of the context, each year of income is considered as a discrete entity although one year may affect another in the sense that a loss may be carried over in certain circumstances from one year of income to the next. It follows that whether or not a person is a ``resident'' must also be considered as a discrete matter in the context of each year of income and not over a period as, for example in this case, from 1994 until 1998.
42. One of the difficulties that I have with the definition of ``resident'' is that the words used to define it carry a range of meanings and shades of meaning in ordinary usage. Those meanings overlap so that, in some instances, the words may be used interchangeably. The same is true of the meanings attributed to the words interpreted by the courts in the authorities to which I have referred. Judges such as Northrop J in FC of T v Applegate have contemplated whether a distinction should be drawn between residence and usual place of abode but did not express a concluded view on the matter. In proffering two alternative interpretations of the definition in s. 6(1)(a)(ii), Hill J in Tanumihardjo v FC of T also explored a similar type of distinction but again did not express a concluded view.
43. There are two reasons why I have concluded that the widest meaning should be attributed to the word ``reside'' as it is used in the opening words of paragraph (a) of the definition. The first is the context of the 1936 Act which is mirrored in the 1997 Act. The context is that of legislation to levy income tax. It provides for the levy of that income tax upon both residents and non-residents. However,
ATC 2315
given that the income regarded as assessable income under both the 1936 Act and the 1997 Act is more broadly based for a resident than for a non-resident, it can be presumed from the fact that it is income tax legislation that Parliament intended that the word ``reside'' should be given its broadest ordinary meaning rather than any narrower meaning. That is so because it is its broadest meaning that leads to the greatest pool of assessable income upon which income tax is assessed.44. The second is the form in which Parliament has chosen to frame the definition of ``resident''. It has chosen the ``means and includes'' form of definition. As a general rule, when an expression is defined by reference to ``means... and includes...'', it
``... indicates an exhaustive explanation of the meaning which for the purposes of the statute must be attached to the term the subject of the definition, and conveys both the idea of enlargement and exclusion:
Dilworth v Commr of Stamps (1899) AC 99 at 105-106;
YZ Finance Co Pty Ltd v Cummings (1963-1964) 109 CLR 395 at pp 398-399, 401-402, 405)''(
Hepples v FC of T 90 ATC 4497 at 4512; (1990) 22 FCR 1 at 21)
45. The sense of exclusion follows from the use of the word ``means'' for, where a word or expression is defined in terms of ``means'', the definition is taken to be exhaustive (
Sherritt Gordon Mines Ltd v FC of T 76 ATC 4130 at 4139; (1976) 10 ALR 441 at 455). The sense of enlargement may follow from the use of the word ``includes'' (see
Deeble v Robinson [1954] 1 QB 77 at 81-82,
Sherritt Gordon Mines Ltd v FC of T 76 ATC 4130 at 4139; (1976) 10 ALR 441 at 455 followed in
Douglas & Anor v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 34 ALD 192 at 203). Whether it does will depend upon the context for the word ``includes'' may have been used
``... not so much to extend the ordinary meaning of the defined term as to specify as falling within the definition that which might otherwise have been in doubt:
Lillyman v Pinkerton (No 2) (1982) 71 FLR 135 at p 138.''(
Hepples v FC of T 90 ATC 4497 at 4512; (1990) 22 FCR 1 at 21)
46. There are yet other cases in which the word ``includes'' has led to the conclusion that the definition was exhaustive (see, for example,
YZ Finance Co Pty Ltd v Cummings [1964] ALR 667 and
Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242). Whether or not the word ``includes'' will be taken to indicate an inclusive or an exhaustive definition depends on a number of factors including the terms used in other definitions in the particular legislation and whether meanings other than those listed could ordinarily be regarded as coming within the term defined (see, for example,
Re Gray (Judge of the Federal Court of Australia), Adamson and AMWU; Ex parte Marsh & Anor (1985) 62 ALR 17 at 27 per Barwick CJ).
47. Applying these principles to the definition of ``resident'' in the 1936 Act, it conveys the idea of exclusion in the sense that the meaning of ``resident'' or ``resident of Australia'' is conveyed strictly by what is set out in paragraphs (a) and (b) of the definition. Within paragraph (a), though, it conveys the idea of enlargement. A person who comes within sub-paragraph (i), for example, may well not come within the ordinary meaning of ``resident''. Domicile, having as it does both a physical and a mental element and being capable of change only if there is a change of both elements and then only if there is a decision to acquire a new domicile, does not equate with residence. In a practical sense, it cannot be said that all those who reside in Australia are domiciled in Australia and that those who do not are not domiciled in Australia. It would seem that sub-paragraph (i) of the definition is extending the meaning of ``resident'' beyond those that would normally come within it. Viewed in this way, the word ``resides'' used in the opening words of paragraph (a) should be given its ordinary meaning and sub-paragraphs (i), (ii) and (iii) should be read as enlarging upon it.
48. In its broadest sense, ``resides'' carries with it the notion of having a home in a particular place. It carries with it the notion of some physical presence with the notion of an intention to treat a place as a home, at least for some time although not necessarily forever. It may be expressed in terms of dwelling in a place. In general terms, that would seem to be the sense in which the word is used in the definition of ``resident'' in s. 6(1) of the 1936 Act. That brings me to the word ``abode''. It is used in both paragraphs (i) and (ii); first in the words ``permanent place of abode'' and
ATC 2316
secondly in ``usual place of abode''. Ignoring for the moment the whole of the expression in which it is used, the word ``abode'' has the meanings of a habitual residence, a house, a home and a dwelling place.49. There is substantial overlap in the meanings of both words but, given the context of income tax legislation, I do not think that either word should be qualified by the other. Each should be given their ordinary meanings and there is no conflict in doing that. The word ``abode'' has been chosen to qualify what may, in their practical application, be extensions effected by paragraphs (i) and (ii) to the ordinary meaning of ``reside''. In considering whether a person comes within either of the extended meanings it is irrelevant to consider whether or not they reside in Australia in the ordinary meaning of that word. They may or may not do so. The focus is instead upon the person's domicile or physical presence in Australia for the requisite time. I have already mentioned that domicile and residence in Australia do not necessarily coincide. Equally, a person's presence in Australia for more than one half of the year of income does not necessarily coincide with his or her residing in Australia. Therefore, when the qualifications to the extended meanings are couched in terms that may coincide with residence of the required character out of Australia, rather than in Australia, there is no conflict if the meanings attributed to a ``place of abode'' overlap or are even the same as those attributed to ``residence'' and so to ``resident''.
50. That brings me to the expression ``place'' as used in ``permanent place of abode'' and ``usual place of abode''. What meaning is to be attributed to it and so to the two expressions. Broadly speaking, ``place'' has two meanings. It may refer to a particular portion of space but so too does the word ``abode'' in the sense of a house or a home or a dwelling place. The word ``place'' may also have a wider meaning of a position or situation in space with reference to other bodies.
51. The meaning that should be attributed to it is coloured by its context and the focus of the definition upon those who properly should be subject to Australian income tax and those who should not. Assuming that a person comes within the definition of a ``resident'' by virtue of the extended meaning given in either paragraph (i) or (ii), it seems to me that neither paragraph necessarily requires the identification of a particular place of abode. That wider meaning would mean that the character of the ``place of abode'' in paragraph (i) and (ii) would be considered in terms of there being a permanent or usual place of abode inside or outside Australia without necessarily identifying a particular abode and its precise location. If this wider sense were adopted in construing ``place of abode'', it would not only avoid the tautology of the narrower interpretation but is consistent with the object of the 1936 Act. The narrower sense would lead to the result that a person who has not lived in Australia for many years but still has a domicile in Australia would be regarded as a resident if he or she were in a temporary abode for a short period because he or she had sold one permanent abode and was waiting to move to the next permanent abode when all abodes were located outside Australia. It would lead to a person who finds him or her self in the same temporary abode for the same reason regarded as a resident if he or she had a number of brief but irregular trips to Australia amounting to more than one half of the year of income. It would also accommodate the ``bird of passage'' to whom Viscount Cave LC referred in Levene v Commissioners of Inland Revenue (at 226) and Hill J in FC of T v Executors of the Estate of Subrahmanyam (at ATC 4008; FCR 188-189). An Australian domiciled bird of passage who lived permanently outside Australia would not be a resident. A bird of passage who flits from place to place spending time in each and who spends more than half of the year of income in Australia may, as Hill J said, have no usual place of abode anywhere. Such a bird would have no place where he or she could usually be found.
52. That is not to say that the issues such as the location of a person's abode (or abodes for there may be more than one), the length of time for which he or she has dwelled in it or them, the time he or she spends there, how long he or she intends to dwell there and whether or not he or she regards it or them as home would be irrelevant on this view. They are not but nor is it irrelevant to ask the same questions at a more general level. Those questions become, for example, is the place of abode or abodes inside or outside Australia, how long has he or she dwelled in places of abode outside Australia, how long does he or she intend to dwell outside
ATC 2317
Australia and does he or she regard such places of abode outside Australia as his or her home.53. Although there is no authority specifically binding upon me, the tenor of the authorities is not to adopt the wider interpretation. In Case U110; Case 76, for example, the Tribunal considered that it is first necessary to establish that a particular place of abode existed before it can be decided whether or not it is a permanent or usual place of abode. Case N31 looked to the possessory rights of the taxpayer in relation to a particular property and considered that they were an essential requirement. Fisher J in FC of T v Applegate looked to a particular home or habitation.
54. In this case, I do not consider that it is necessary to decide whether the wider or narrower interpretation of ``place'' should be adopted. Whichever is appropriate, I consider that the same result is reached on the evidence. If I am to start with the narrower approach, Dr Subrahmanyam had no place of abode in Singapore once it was sold. For all practical purposes, that was after the option to purchase her house was exercised on 14 October, 1994 and so during the first tax year in issue. From that date, she had no place of abode that could be described as her usual place of abode or otherwise. There is no suggestion in the evidence that she could stay at the townhouse where her furniture and personal effects were stored until August, 1996. It was a three bedroom townhouse in which her furniture and effects occupied two bedrooms and the caretaker the third.
55. Turning to the wider approach, the disposal of her house is but one matter to be taken into consideration. The circumstances in which she came to sell the house are also relevant. It is clear from the statements that Dr Subrahmanyam's account with the DBS Bank in Singapore was overdrawn during 1994 (AB pages 37-38). She was advised that the amount to which it was overdrawn, some S$300,000 exceeded her authorised limit and she was asked to cover the excess (AB, page 36). At that time, her medical condition was already known and she expected her treatment to be very expensive. By selling her house, she was able to cover her overdraft and have a substantial sum to cover her medical expenses (AB, page 23).
56. The retention of her furniture and effects in storage and her arrangements for the care of her dog indicates an intention on her part to establish and furnish another residence in Singapore. It indicates an intention to retain her links with Singapore as do her maintaining contact with a real estate agent in Singapore and inspecting properties on her visits to Singapore. So too do matters such as the retention of her practising certificate for medical practitioners and her membership of the Singapore Medical Association until her death in 1998 (AB, pages 43-45 and 50), her receiving dividends from her medical practice (AB, page 39) and her choosing to have her correspondence from bodies such as the Singapore Medical Council, Singapore Medical Association, the Comptroller of Income Tax, The Central Depository (PTE) Limited, the Straits Trading Company Limited and from the CPF Medisave Top-Up Scheme addressed to her at an address in Singapore up until her death (AB, pages 43-45, 49-50, 41-42, 53-54, 46-47 and 39). The address she gave was that of her uncle where she stayed when she returned to Singapore. In 1995, the address given on her application to review the decision refusing her temporary retirement visa, was the address she used on the documents to which I have just referred (AB, pages 59-65). Dr Subrahmanyam also advised the Singaporean authorities of that address on 1 June, 1997 pursuant to the National Registration Regulations 1991 (Singapore). During her time in Australia, Dr Subrahmanyam had Mutual Community Health (Overseas Resident) Cover.
57. During the same period, Dr Subrahmanyam also used an address in Adelaide as her mailing address. So, for example, the DBS Bank in Singapore sent her statement for the months of July and December, 1994 to that address (AB, pages 37-38) as did the North Adelaide Branch of the ANZ from at least November, 1994 until the date of her death (AB, pages 137-181). Her solicitors wrote to her at her Adelaide address in October and November, 1994 regarding the sale of her house (AB, pages 117-119).
58. In her application dated for a temporary retirement visa, Dr Subrahmanyam advised that she resided with her younger brother, Dr Iswaran and his wife and wrote, in part:
``In Singapore I ran a busy Medical Practice close to the City Centre, and lived alone (except with my late mother, who passed away in September 1993). Since retiring as a Physician in August 1994, it has been my
ATC 2318
desire also to enjoy my retirement and to be away from my patients. Hence my visits to Adelaide to assess it for my retirement....
Living in Adelaide are also my late brother's (3rd in the family, late Professor Puvan Iswaran, Obstetrician & Gynaecologist of the medical School in Kuala Lumpur, who passed away in the MAS plane hijacked from Penang and blown-up at Johor Bahru in December 1977) wife and 2 daughters. Dr Anusha Visvanathan in Medical Practice and her younger sister Asha Puvan an Accountant/Lawyer. I have also always had this wish to spend my retirement with my late brother's children.
...
In Adelaide, I am most comfortable, relaxed and enjoy the hospitality and company of my brother, his family, also my sister-law, nieces and our friends. Hence the desire to retire in Adelaide.''
(AB, page 91)
59. In her application to review a decision refusing her a temporary retirement visa made on 27 December, 1995, Dr Subrahmanyam wrote that her health was quite stable and her feeling of well-being had improved since her ``retirement/holiday in Adelaide'' (AB, page 64). She was continuing to enjoy her retirement in Adelaide and thought her condition unlikely to deteriorate in the following four years being the length of the visa that she sought. Should that change, Dr Subrahmanyam wrote, she would ``... no doubt consider returning to Singapore,... [her]country of citizenship, where care and facilities for full time home nursing and domestic help, etc, is excellent, cheaper and more readily available.'' (AB, page 64) She had met, and would continue to meet, all costs without ever having to call upon community or public resources. While she remained in good health, she preferred:
``... to be with those close relatives and friends of mine in Adelaide, who love and care for me and encourage me to enjoy my retirement and holiday in Australia. Hence also my preferred option for this temporary, 4 year residence Visa in Australia under the Class Retirement (410).''
(AB, page 64)
60. Understandably, Dr Subrahmanyam's view of her medical condition was expressed in more positive terms than those used by Dr Clarkson of the Renal Unit at the Royal Adelaide Hospital. In a letter written on 10 October, 1995, he advised that a renal biopsy performed soon after he first saw her in September, 1994 demonstrated advanced diabetic glomerulosclerosis with interstitial changes of scarring and hypertensive vascular changes. The prognosis for her condition was poor over the following five to ten years and Dr Clarkson expected Dr Subrahmanyam to progress to end-stage renal failure in that period (AB, page 56). On 19 February, 1996, he reported that Dr Subrahmanyam's recent trip to India had not decreased her renal function or her problems with diabetes. He noted that he was trying to help her to obtain a temporary retirement visa to facilitate her stay in Australia. (AB, page 55) The letter was addressed to Dr Devasagayam, who certified on 4 May, 1999 that Dr Subrahmanyam had been his patient since September, 1994 and that she had made him understood that she was in Australia for the express purpose of medical treatment only.
61. This summary of the evidence and the background facts I have set out earlier contain indications both ways. Dr Subrahmanyam certainly retained links with Singapore both in that she kept an address there, she retained her professional, personal and family links and, for a time, her furniture and personal effects. After her arrival in Australia in September, 1994, she had eight trips there but each was for a short duration and, during the three trips when she also visited Kuala Lumpur, were for a very short period indeed. Of those eight short trips, three were in the first year of income i.e. the year ending 30 June, 1995. Those three trips meant that she spent some 32 days in Singapore in that year. In the year ending 30 June, 1996, Dr Subrahmanyam spent some 7 days in Singapore and in the year ending 30 June, 1997, she spent nine days in Singapore. Dr Subrahmanyam spent no time in Singapore in the final year ending 30 June, 1998.
62. The majority of her time was spent in Adelaide and her address in Singapore was simply that; an address for mailing purposes and, as it was her uncle's address, possibly a place to stay on her eight short trips to Singapore. I am satisfied that the reasons for her doing so are linked to her wishing to seek medical treatment in Australia. While she ``downplayed'' her condition when it came to her seeking a temporary retirement visa, it is
ATC 2319
clear from her seeking medical treatment at the Renal Unit so soon after her arrival in Australia in September, 1994, her ongoing treatment and Dr Clarkson's stated efforts on her behalf to secure that visa, that she wanted to be in Australia for medical treatment. Her letter accompanying her application to refuse her a temporary retirement visa suggests to the contrary when it suggests that she would return to Singapore if her health deteriorated. Given the state of her health and of her having sought professional help so quickly, that statement has the ring of a person who is trying to persuade the Immigration officials that there is no likelihood of her being a charge on the health services compartment of the public purse rather than of a person who had such an intention.63. Weighing all of these matters, I am satisfied that Dr Subrahmanyam was propelled to come to Australia by reason of her medical condition. She sought medical treatment and the comfort of her family in Adelaide. She was propelled to sell her house in Singapore in order to cover her overdrawn bank account and to meet future expenses. It can be presumed that, had she not had the overdrawn account, she might not have sold the house but it can equally be presumed that had she not had her medical condition, she might not have been overdrawn. It follows that the reasons that Dr Subrahmanyam sold her house is relevant but is not determinative of the matter. It is just one tile in the mosaic.
64. I find that Dr Subrahmanyam did not abandon her family and friends who remained in Singapore and, given the connections she retained with that country, both professional and personal, it is likely that she left at least a part of her heart in Singapore and perhaps her dreams. If all had gone as she hoped, it is likely that she would have returned to Singapore and continued her life. As it was, she returned for only very short periods of time and, apart from a short trip to India, remained in Adelaide. In all of the circumstances, I am not satisfied that Dr Subrahmanyam can be said to have ordinarily been found to be living in Singapore in any of the years in question. It was not the place where she was ordinarily resident, ordinarily had her place where she dwelt or ordinarily had an abode. It was not her usual place of abode.
65. As Singapore was the only place other than Adelaide where Dr Subrahmanyam may have had a usual place of abode, I am not satisfied that she had a usual place of abode outside Australia. In view of that conclusion, I do not need to consider the second aspect of the qualification in paragraph (a)(ii) for, regardless of the outcome of such a consideration, Dr Subrahmanyam must be considered as a ``resident'' for the purposes of the 1936 Act and so of the 1997 Act.
66. For the reasons I have given, I affirm the objection decisions of the respondent dated 27 June, 2000 and 22 August, 2000.
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