Gurney v FC of T

Members:
FD O'Loughlin QC DP

Tribunal:
Administrative Appeals Tribunal, Melbourne

MEDIA NEUTRAL CITATION: [2020] AATA 3813

Decision date: 30 September 2020

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FD O'Loughlin QC (Deputy President)

1. This application concerns the operation of the s 6 definition of resident or resident of Australia in s 6(1) of the 1936 Assessment Act^[1] The Income Tax Assessment Act 1936 (Cth). in the context of a person whose living arrangements were in a state of transition during the 2017 year.^[2] The financial year that ended on 30 June 2017.

2. This application calls for consideration of the circumstances of a man who:

• (a) was once a resident of the UK;^[3] United Kingdom.
• (b) disposed of substantially all of his assets in the UK before travelling to the Philippines, New Zealand, and then Australia;
• (c) entered Australia on a working holiday visa having previously sought a longer term visa without being aware of the processing time for such a visa, with the intention, anticipation and expectation of changing those arrangements to allow indefinite career styled employment here;
• (d) made his life here for the vast majority of the time that he was here;
• (e) was unable to secure arrangements as sought; and
• (f) abandoned his plans and returned to the UK, initially to visit his parents over Christmas and then to long term accommodation near where he secured long term employment shortly after he returned to the UK,

and whether he was a resident of Australia^[4] A resident or resident of Australia within the meaning of that term in s 6(1) of the 1936 Assessment Act. for the time he was present and working in Australia.

3. The Respondent Commissioner^[5] Commissioner of Taxation of the Commonwealth of Australia. considered the Applicant not to be a resident and assessed him in respect of his income earned in Australia for the 2017 year on that basis. He defends his objection decision on the bases that the evidence does not:

• (a) support a conclusion that the Applicant resided in Australia in the ordinary sense of the word in the 2017 year; and/or
• (b) disclose that the Applicant had an Australian domicile,

and does reveal that the Applicant was a resident of the UK, was domiciled in the UK, and that he had a permanent place of abode in the UK.

4. The Applicant disputes the objection decision, contending that he was a resident.

THE STATUTORY TESTS AT THE CENTRE OF THE PRESENT DISPUTE

5. As is relevant to the present application, the definition of resident or resident of Australia in s 6(1) of the 1936 Assessment Act is in the following terms:

"resident or resident of Australia" 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 the

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    ATC 8953

    person's permanent place of abode is outside Australia;

    …

6. This application concerns whether the Applicant was a resident because:

• (a) he resided in Australia; or
• (b) his domicile was in Australia and the Tribunal (standing in the shoes of the Commissioner) is not satisfied that he had a permanent place of abode outside Australia.

The primary or para (a) test - residing in Australia - relevant principles

7. A number of relevant principles to be applied in determining a person's place of residence emerge from the authorities, the most recent of which is the decision of a Full Court of the Federal Court in Addy.^[6] Commissioner of Taxation v Addy [2020] FCAFC 135 . In the present context Derrington J’s reasons address the relevant principles. Davies and Steward JJ agreed with Derrington J’s reasons concerning these principles. They include:

• (a) an individual resides where she or he lives, and the process of determining that location was described by Williams J in Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation in the following terms:

  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 habitually lives even if this is in hotels or on a yacht or some other abode^[7] (1941) 64 CLR 241 at 249 .

  and these concepts have been endorsed recently;^[8] See Harding v Commissioner of Taxation [2018] FCA 837 at [31] , Derrington J referring to Latham CJ in Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99-100 who approved the observations in Levene v Inland Revenue Commissioners [1928] AC 217 , endorsed on appeal in Harding v Commissioner of Taxation [2019] FCAFC 29 (‘ Harding ’) at [24] and [57], Davies and Steward JJ and Addy at [73], Derrington J.

• (b) a person can continue to reside at, and therefore continue to be resident in, a place notwithstanding current absence from that place^[9] Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449 , Wilcox J, and Addy at [74], Derrington J. if he or she has maintained a sufficient continuity of association or connection with that place;^[10] Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449 , Wilcox J and the reference there to Levene v Commissioners of Inland Revenue [1928] AC 217 at 225 . See also Harding v Commissioner of Taxation [2018] FCA 837 at [42] to [45], Derrington J endorsed on appeal in Harding v Commissioner of Taxation [2019] FCAFC 29 at [61] , Davies and Steward JJ and Addy at [74], Derrington J.
• (c) a person may retain some financial connections with a place but still have abandoned residency in that place, particularly where those financial connections are the remnants of prior residency in a place, or are connected with ongoing financial responsibilities in a place;^[11] See Harding v Commissioner of Taxation [2018] FCA 837 at [84] , Derrington J endorsed on appeal in Harding at [63], Davies and Steward JJ.
• (d) a person's presence in a place (and presumably absence of presence in a place) and their intentions concerning that presence or absence, are both to be considered in addressing that person's place of residence.^[12] See Harding v Commissioner of Taxation [2018] FCA 837 at [42] to [45], Derrington J endorsed on appeal in Harding at [61], Davies and Steward JJ and Addy at [75], Derrington J. Intentions are of elemental importance and intention to treat that place as home (at least for the time being or temporarily) is the benchmark against which intentions in a particular case need to be tested;^[13] See Addy at [74] and [75], Derrington J.
• (e) evidence of intentions can be given personally, can be found in contemporaneous statements of intention and can be reflected in objective manifestations of state of mind as at the test time, objective manifestations usually being more reliable,^[14] See Addy at [76(e)], Derrington J. with the facts and circumstances of a person's mode of living being an indicator of the character of the presence in or continued association with a particular place and the intention accompanying that presence or continued association with that place.^[15] See Addy at [76(f)], Derrington J. Contemporaneous statements made in incoming and outgoing passenger cards when entering and leaving Australia have a role to play, and it is not correct to dismiss such statements, or give them no weight, merely because they are not made in a taxation setting.^[16] See Addy at [82], Derrington J. At first instance they are to be regarded as statements of the place where a person lives, and assumed to be true, but weight to be attached to them can vary in the circumstances.^[17] See Addy at [82], Derrington J. It follows that if there is a reason to conclude that they are not to be taken as statements as to the location of the place where a person lives, the weight attached to the statement declines. And in some circumstances the appropriate weight may decline to the extent that no weight is to be given to them at all;
• (f) a person can have two residences, and therefore two places of residence, concurrently, and thereby attain the character of a resident of both places.^[18] Gregory v Deputy Federal Commissioner of Taxation (W.A.) (1937) 57 CLR 774 at 777–778 , Dixon J. See also Addy at [78], Derrington J. A place of prior residence, and potential retention of that place as a place of residence, is part of the context in which the question of whether residence in a new place has been taken up needs to be considered.^[19] Addy at [78], Derrington J. It follows that retention of residence in a

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  ATC 8954

  place in which a person is not currently present might lead to a presumption that to be regarded as a resident of the place in which a person is currently present, more needs to be shown than if a former place of residence has been abandoned as such a place;
• (g) events occurring both before and after the period under examination may be considered as throwing light on and disclosing the significance of habits and conduct within the period under examination;^[20] Gregory v Deputy Federal Commissioner of Taxation (W.A.) (1937) 57 CLR 774 at 777–778 , Dixon J. and
• (h) whether a person is a resident is a question of degree, and therefore one of fact.^[21] Commissioner of Taxation v Miller (1946) 73 CLR 93 at 101 , Rich J. See also Addy at [77], Derrington J.

The para (a)(i) test - Australian domicile and non-Australian permanent place of abode - relevant principles

8. The para (a)(i) residence test has two parts:

• (a) the first whether the facts support a legal conclusion that a person has an Australian domicile; and,
• (b) if the facts support an Australian domicile conclusion, the second being the carve out for those circumstances where the Commissioner, and the Tribunal in his shoes, is satisfied that the person has a permanent place of abode outside Australia.^[22] See Harding at [20], Davies and Steward JJ.

9. Domicile is a legal concept as opposed to residence which is a question of fact.^[23] Australasian Temperance & General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 335 , Higgins J. A person's domicile is a legal concept that is attributed to a person by applying common law principles, as affected by the Domicile Act,^[24] Domicile Act 1982 (Cth). to a person's personal living circumstances and his or her intentions in relation to those circumstances. Section 3 of that Act explains that it was enacted to abolish particular presumptions and to make other reforms. One of the common law presumptions that continues is that one's domicile of origin continues until by choice, it is changed.

10. Section 10 of the Domicile Act is in the following terms:

Intention for domicile of choice

The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his or her home indefinitely in that country.

11. The concept of a person's domicile, has been expressed as:

…. that legal relationship between [the person] and a territory subject to a distinctive legal system which invokes the system as the [individual's] personal law …which arises either … from the [person] … being or having been resident in such territorial area with the intention of making it his permanent home or, … from there being or having been such a relationship on the part of some other person on whom the [person] … is for this purpose legally dependent. …^[25] Henderson v Henderson (1965) 1 All ER 179 at 180–181 , Sir Jocelyn Simon P (as his Lordship then was). See also Shekleton v Shekleton [1972] 2 NSWLR 675 at 682 , Jenkyn J.

12. Everyone must have a domicile, but it is not necessary for co-existent or contemporaneous residence - a person who might have no place of residence always has a domicile.^[26] Australasian Temperance & General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 335 , Higgins J referring to Udny v Udny (1869) L.R. 1 H.L. (Sc.) 441 at 457 . Domicile is not lost by abandonment without replacement. Until a new domicile is inferred by the law from the combination of actions and intentions as to residence, a person's pre-existing domicile survives.^[27] See Domicile Act s 7. Historically, on abandonment of domicile of choice, domicile of origin revived – Fremlin v Fremlin (1913) 16 CLR 212 at 232 , Isaacs J referring to what Lord Westbury said in Udny v Udny (1869) L.R. 1 H.L. (Sc.) 441 at 457–458 . Section 7 of the Domicile Act altered the common law presumption but did not produce a result that a person could not have any domicile upon an abandonment of an earlier place of residence that coupled with intentions, constituted a domicile. See also Billington v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 480 at [42] , Logan J.

13. Subject to some not presently relevant modifications of common law principles made by the Domicile Act, a person can have a domicile of origin and a domicile of choice. Domicile of choice is:

… a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.^[28] Fremlin v Fremlin (1913) 16 CLR 212 at 233 , Barton J referring to what Lord Westbury said in Udny v. Udny L.R. 1 H.L. (Sc.) 441 at 458.

14.

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ATC 8955

The difficulties as to its change have been noted in the following terms:

… Though the principles which govern a change in domicil are well established, they are often difficult of application, ….It is often difficult to determine whether [a person has] … settled in their new place of residence with the intention of making it [his/her] … permanent home; or whether [she/he intends] … to return at some time to live permanently in [his/her] … country of origin; or whether, thirdly, the residence is quite indeterminate in character, no clear intention as to ultimate permanent residence being formed.^[29] Henderson v Henderson (1965) 1 All ER 179 at 180–181 , Sir Jocelyn Simon P (as his Lordship then was). See also Shekleton v Shekleton [1972] 2 NSWLR 675 at 682 , Jenkyn J.

15. For a person to change his or her domicile it is necessary both to change the fact of residence in a place, i.e. become a resident of the new place, and intend that that new place of residence be indefinite^[30] See Domicile Act s 10. - actions and intentions must co-exist.^[31] Fremlin v Fremlin (1913) 16 CLR 212 at 232 , Isaacs J referring to what Lord Westbury said in Udny v. Udny L.R. 1 H.L. (Sc.) 441 at 457–458.

16. To the extent the decisions in Applegate suggest that intention to return to a place is relevant to whether a new domicile has been chosen,^[32] E.g. Federal Commissioner of Taxation v Applegate (1979) 27 ALR 114 at 128 , Fisher J. those suggestions need to be viewed in the context of the pre-Domicile Act law. Post the Domicile Act, attention needs to be directed to intentions concerning making a home indefinitely in a country. Accordingly, the effect of s 10 of the Domicile Act is that a person who has changed domicile and has a place of abode in that new place of domicile, will have a permanent place of abode there.

17. Post s 10 of the Domicile Act, changing domicile either remains a higher standard of commitment to the new place of domicile than is required to change place of residence, or requires the same standard of commitment to the new place of domicile as is required to change place of residence. As such, for present purposes, if the Applicant has changed his place of residence to Australia as ordinarily understood, then the outcome that follows is that questions of change of domicile do not need to be considered, and if he has not changed his place of residence as ordinarily understood to Australia then he will not have done enough to be regarded as having adopted Australia as a domicile of choice and therefore would not succeed on this basis either.

18. Accordingly, it is sufficient for present purposes to limit the analysis primary residence test under para (a) of the definition. If that test is satisfied the Applicant succeeds and if it is not, the Applicant fails.

EVIDENCE

19. The evidence led included an affidavit from the Applicant, his personal testimony, a form of statement from his former supervisor at Bayside Council and the T documents.^[33] The documents filed and served pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

20. The Applicant is accepted as a witness who told the truth. His evidence was consistent with contents of documents filed and he volunteered evidence in response to requests of the Commissioner that the Respondent sought to rely on to discredit the case the Applicant was advancing when had he wanted to withhold it the Respondent would have had no way of knowing that he had. While challenged concerning the dates and sequencing of flight reservations in cross examination, the explanations given that his initial inability to recall dates bookings were made compared with his ability to specify other dates when events occurred as set out in his witness statement is entirely consistent with his girlfriend making bookings and the bookings not being recorded in his smart phone calendar or in his emails compared with other matters which were so recorded, or for which dates could be established by reference to date or time stamped digital photographs. Correspondence the Applicant wrote while in Australia contain statements that are consistent with his stated intention to live and work in Australia. The Tribunal was left with the conclusion that there was no reason to doubt the Applicant gave an honest account of his presence in Australia and answered questions asked of him in the same manner.

21. Also included in the T documents were copies of the Applicant's immigration cards completed on entry to and exit from Australia. Those cards reveal that the Applicant disclosed that he was not an Australian resident and that he was a temporary visitor. More detail concerning those cards is set out below.

22. The Applicant's evidence of his understanding of the concept of residence was that it was the same as citizenship. That understanding is entirely consistent

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ATC 8956

with the information disclosed on the cards that the information sought on them:

… is required to administer immigration, customs, quarantine, statistical, health, wildlife and currency laws of Australia and its collection is authorised by legislation.

without any express mention of taxation laws or uses, and the forms ask questions identifying groups of people, namely Australian residents, visitors, temporary entrants, non- Australian citizens, and questions concerning Australian currency, foreign currency, various types of goods, animal and food substances, soils and disease related matters. Questions concerning taxation matters are not asked.

FACTS

23. The Applicant entered and departed Australia twice. The period between the second arrival on 28 February 2016 and the subsequent departure in November 2016 is the period that is the subject of this dispute.

Before April 2015

24. The Applicant was born in England in 1991 and is a UK citizen by birth and holds a British passport.

25. The Applicant is not married but had a girlfriend who accompanied him in Australia during the 2016 and 2017 years and with whom he lived in the UK on, or very shortly after his return to the UK.

26. The Applicant's parents live in Nottingham, UK on a permanent basis and have their home there.

27. The Applicant lived with his parents until September 2010 when he left Nottingham to study Civil Engineering at the University of Sheffield. While attending university the Applicant had student accommodation.

28. The Applicant graduated with a Masters of Engineering with first class honours on 27 June 2014 and after the graduation moved back in with [his] parents and remained there until April 2015, it being the Applicant's last fixed address in the UK before the Applicant moved to New Zealand via a short holiday in the Philippines.^[34] The Republic of the Philippines (Republika ng Pilipinas).

29. He considered his parents' home his home until he left university and likes going back there to visit his parents. The Applicant believes his parents would always take him in if needed.

30. Before coming to Australia, the Applicant had not yet worked in the engineering or construction industry.

31. Before leaving the UK on 15 April 2015, the Applicant:

• (a) lived with his parents in Nottinghamshire, UK;
• (b) had his personal mail was directed to his parents' address.

32. In preparation for departure from the UK, the Applicant:

• (a) sold a lot of clothes, some furniture, desk and chair, lamp, [his] guitar, [his] bike that [he] had in the UK, a lot of sports equipment [a pair of football boots, cricket equipment] … and any day-to-day items that [the Applicant did not take with him] and gave away a tennis racquet and badminton racquet; and
• (b) left his remaining personal belongings, comprising books, which … were not practical to take away with [him], and [which the Applicant] did not want to dispose of, for storage at his parents' home, a home he did not consider to be his own.

15 April 2015 departure from the UK and following

33. On 15 April 2015, the Applicant and his girlfriend left the UK for the Philippines for a holiday, and the Applicant travelled from there to New Zealand arriving on 10 May 2015. His girlfriend returned to the UK.

34. On 16 September 2015, the Applicant's girlfriend joined him in Queenstown (New Zealand) and shortly after they travelled to Motueka, where they lived and worked until December 2015.

35. On 6 December 2015, the Applicant booked return flights from New Zealand to Tasmania for the Christmas/New Year period and a one way flight from Queenstown New Zealand to Melbourne, to arrive on 28 February 2016 for himself. The Applicant's girlfriend, who had returned to the UK for Christmas, also booked flights from the UK to arrive in Melbourne on 28 February 2016.

36. On 16 December 2015 while in Motueka, without knowing how long the

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ATC 8957

application and approval process would take and having previously booked non-cancellable flights to Australia departing New Zealand to arrive in Melbourne on 28 February 2016, the Applicant and his girlfriend each applied for a 476 visa^[35] A Skilled Recognised Graduate subclass 476 visa. So they could find permanent, skilled work in Melbourne when they arrived in late February 2016. The Applicant's girlfriend had also qualified as a civil engineer. It is apparent that the Applicant had not done much, if indeed any, research concerning either visas or obtaining employment in fields related to his qualifications before arriving in Australia. He had not formed a view about the level of difficulty of getting an engineering job, and had heard that it was very easy, given the state of the economy, and when he applied for the skilled visa had no belief about how long it would take for that visa application to be processed.

37. On 17 December 2015, the Applicant's girlfriend departed for the UK and the Applicant flew to meet friends in Tasmania for a holiday over Christmas and New Year.

38. On 18 December 2015, the Applicant first entered Australia ( First Arrival ) and completed an incoming passenger card with details to the effect that:

• (a) he did not intend to stay in Australia for the following 12 months;
• (b) he was a visitor or temporary entrant;
• (c) he intended to stay in Australia for 13 days;
• (d) he was a UK resident; and
• (e) the main reason for coming to Australia was for a holiday.

39. On 2 January 2016, the Applicant left Australia and completed an outgoing passenger card with details to the effect that he was a:

• (a) UK resident; and
• (b) visitor or temporary entrant departing.

40. Having learned on 14 January 2016 from his girlfriend that the processing time for a 476 visa was in excess of four months, and having previously booked non-cancellable flights from New Zealand to Australia for 28 February 2016, and wanting to begin full time work as soon as possible after arrival in Australia, on 14 January 2016, the Applicant gave notice withdrawing the 476 visa application hoping to receive a refund of the application fee and applied for a 417 visa.^[36] A Working Holiday (Temporary) (class TZ) Working Holiday (subclass 417) visa. The Applicant maintained his intention to work indefinitely and stay long term and indefinitely in Australia and intended to go about securing that objective in a different way. Withdrawing the application for the 476 visa was refund driven given it would not be issued in time for his planned entry to Australia on 28 February 2016.

41. On 15 January 2016 the Applicant and his girlfriend applied for 417 visas. Those visas were granted promptly thereafter.

42. A 417 visa for entry to Australia, which was valid and allowed the Applicant to remain in Australia until 28 February 2017, was granted to the Applicant on 29 February 2016.

28 February 2016 arrival in Australia and following

43. On 28 February 2016, the Applicant entered Australia for a second time with the intention before and on arrival to stay and work in Australia long term. The Applicant accepts that that objective would have been easier to achieve had he been granted a skilled graduate visa.

44. For his second entry the Applicant, completed an incoming passenger card with details to the effect that:

• (a) he did not intend to live in Australia for the next 12 months;
• (b) he was a visitor or temporary entrant;
• (c) his intended address is "Melbourne";
• (d) his intended length of stay was six months;
• (e) he was a UK resident; and
• (f) the main reason for coming to Australia was for employment.

45. The Applicant completed the card stating the intended length of stay of six months because that was the longest period his then visa permitted to work in any one place. The Applicant's evidence was that on these cards he equated residence with citizenship.

46. The Applicant reunited with his girlfriend in Melbourne on 28 February 2016.

47. On arriving in Melbourne, and in the following months, the Applicant applied for many Civil Engineering positions. He visited specialist recruitment agencies, approached

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ATC 8958

companies directly, made phones calls and sent emails. The job applications have some consistent themes to them. The applications sought jobs of an engineering nature. The Applicant indicated that he was looking to get his foot in the door within the particular industry in which the recipient of the communication was involved. The Applicant also indicated that he was in Australia on a working holiday visa, as opposed to in Australia on a working holiday. After indicating his visa status the Applicant disclosed that he was considering seeking sponsorship to continue within Australia beyond the date of expiry of his visa. The Applicant also acknowledged that the prospective employers' probably had graduate recruitment schemes and that they might not fit within [his] current visa. These applications for jobs within the field of his qualifications, or career employment ambitions, He indicated his visa status to avoid having fruitless discussions that would lead nowhere after his then current visa restrictions were revealed. These attributes of the Applicant's job applications are consistent with his expressed intention throughout to come to Australia to live and work,^[37] As expressed in his residency questionnaire responses. and seek long term, indefinite, career styled employment, change his visa entitlements after he arrived here and stay on an indefinite basis.

48. Through this process of job applications, and contrary to the Applicant's expectations and beliefs, it became clear to the Applicant that he would struggle to find engineering work, given his lack of experience and Australian companies' requirements to prioritise Australian nationals in offering permanent positions.

49. After a number of short term jobs the Applicant secured longer term employment at Bayside City Council. He commenced work there in a customer service role on 18 April 2016. It was long term, full time work that the Applicant had been seeking, albeit he had hoped for an engineering role. The Applicant's girlfriend, in the same position having sought similar work, found an administration job in the Melbourne CBD.

50. When completing the tax declaration for this position, the Applicant crossed yes in answer to the question Are you an Australian resident for tax purposes?

51. Through to July 2016, the Applicant continued in his endeavour to secure long term employment in an engineering role.

52. In July 2016, the Coordinator of Asset Management in the Infrastructure Department at Bayside City Council learned of the Applicant's qualifications, and offered him a full-time position of Drainage Engineer, which the Applicant immediately took.

53. Some time after securing the engineering role, and toward the end of the six month term of this then permitted employment under his then visa conditions, the Applicant sought sponsorship, the Asset Management Coordinator made enquiries and advised that that could not be facilitated.

Flight reservations leading to departure from Australia

54. The following flight reservations were made by the Applicant and/or his girlfriend:

• (a) on 15 August 2016, a ticket was reserved for a flight from Sri Lanka to the UK on 19 December 2016.
• (b) on 4 September 2016, a ticket was reserved for a flight from Melbourne to Perth on 17 October 2016; and
• (c) on 5 September 2016, a ticket was reserved for a flight from Perth to Sri Lanka on 15 November 2016.

55. The Sri Lanka to UK reservation was made by the Applicant's girlfriend when fares were cheap and when the Applicant did not know whether his employment situation would become longer term or not. When made, the Applicant and his girlfriend intended to return to the UK for a Christmas visit after a holiday en-route in Sri Lanka. Ongoing employment arrangements would dictate when, if at all, a return to Melbourne would occur and the length of time that would be spent holidaying en-route to the UK. Had employment arrangements been secured, return flight arrangements would have been attended to and shorter en-route holidays would have been taken.

56.

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ATC 8959

The Melbourne to Perth and Perth to Sri Lanka reservations were made after it was apparent to the Applicant they neither he nor his girlfriend would be able to secure longer term career styled employment in Australia on the immediate term through employer sponsorship arrangements.

57. The Tribunal accepts the Applicant's evidence concerning flight reservations

Accommodation in Australia

58. Upon arrival in Australia, the Applicant and his girlfriend stayed at an Airbnb for one week, and then a hostel for two nights before securing longer term accommodation:

• (a) from March 2016 - August 2016 - an apartment 86/88 Wells Street Southbank VIC 3006 with his girlfriend and friends. In August 2016, the Applicant's landlord advised that the rental property was to be vacated because she wanted to occupy it herself; and
• (b) from August 2016 - October 2016 - a house at 209 Gore Street Fitzroy VIC 3065 with his girlfriend.

59. From October 2016 - November 2016 the Applicant and his girlfriend did not have a fixed address as they were travelling in Western Australia.

Activities in Melbourne

60. While in Melbourne the Applicant:

• (a) maintained a bank account which he used for his everyday banking;
• (b) purchased two bicycles as his main means of transport;
• (c) purchased household items, sporting equipment and a guitar;
• (d) cycled and caught the train to work;
• (e) was a member of his work soccer and touch rugby teams;
• (f) regularly attended a social soccer club and Richmond Tigers AFL games;
• (g) explored Victoria with his girlfriend; and
• (h) attended gigs and other events.

Visas held

61. The Applicant held a 417 visa for the following periods:

Financial year	Dates in Australia	Number of days
2016	28 February 2016 to 30 June 2016	123
2017	1 July 2016 to 15 November 2016	138

Departure from Australia

62. On 17 October 2016, the Applicant and his girlfriend flew to Western Australia for a holiday.

63. On 15 November 2016, the Applicant and his girlfriend flew to Sri Lanka for a holiday.

64. The Applicant completed an outgoing passenger card with details to the effect that he was a:

• (a) UK resident; and
• (b) visitor or temporary entrant departing.

65. On 19 December 2016, the Applicant and his girlfriend returned to the UK. Given the time of year, the Applicant and his girlfriend were unable to secure employment and housing prior to the Christmas period. The Applicant stayed with his parents for a period of around 15 days.

66. On 2 January 2017, the Applicant and his girlfriend moved to Woking. The Applicant engaged in temporary work at the University of Surrey while applying for positions within his field of expertise.

67. The Applicant and his girlfriend both secured positions within their field of expertise and commenced working on a long term basis on 10 May 2017.

68. On 5 May 2017, the Applicant and his girlfriend moved into a flat in Brighton. In early 2018, the Applicant and his girlfriend moved to another flat within three kilometres of the first flat.

69. Following his return to England the Applicant engaged in the same types of activities and lived the same lifestyle as he had in Melbourne.

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ATC 8960

The Applicant's parents' home

70. The Applicant's first place of accommodation and shelter after returning to the UK was his parent's home. His evidence concerning his parents' home was as follows:

ATO residence questionnaire;

While in Australia, did you have a place overseas where you could return to live?

Answer

Only option to return to parents' place, which would always be an option.

And in giving evidence to the Tribunal,

[Applicant's counsel] What did you mean by that [the questionnaire response]?---

[Applicant] I meant that at any stage of my life, including now, including when I was at university, whenever, I always have the option to go to my parents' house.

[Applicant's counsel] Did you intend that comment to mean that you always had an option of permanently returning to your parents' home, as it was your home too?---

[Applicant] Absolutely not

[Applicant's counsel] When you returned to the UK on 19 December 2016, where did you live at 5 that time?--

[Applicant] Where did I - I - I had returned to the UK and I was visiting my parents at Christmas and New Year, and I wouldn't say that I lived there. I moved to Woking shortly after

[Applicant's counsel] Given that you returned on 19 December 2016, would it have been possible 10 for you to find a job or accommodation at that time?---

[Applicant] No.

Postal addresses

71. While he travelled abroad, some mail of the Applicant's mail continued to be received at the Applicant's Parents address and other mail was directed to his non-UK addresses or on forwarded to those addresses. Whether the Applicant maintained a postal address in the UK while he was in Australia is a matter in issue. The Respondent maintains he did. The evidence is an alleged admission of that fact to the ATO. The evidence of that admission is as follows:

Counsel:

Now, you provided a postal address in the UK to the ATO, being your parents' address. Why did you provide that as a postal address?---

The Applicant

My case officer for the initial objection …. asked me to complete a residency questionnaire, and also asked me to produce - sorry, he also asked me for my postal address in Australia, and I gave that as two addresses that I had in Melbourne, and - and in reply to that, he then asked if I had any other postal addresses abroad, to which I said, "I guess you could consider my parents' house a postal address".

And an email exchange between the ATO case officer and the Applicant:

ATO case officer:

I actually have another couple of questions I wanted to ask of you, if that is okay. What was your postal address while you were in Australia? To what address did you return when you left Australia and returned to your home country?

The Applicant

I have the two postal addresses in Australia, flat 86 of 88 Wells Street, Victoria, 3006, and 209 Gore Street, Victoria 3065

ATO case officer:

Hi Michael. Thanks so much for getting back to me. Did you have an overseas postal address while you were in Australia? Could you also advise how long you stayed at your parents' house when you returned to the UK. Regards, ….

The Applicant

Hi David.

I guess my parents' house would have been a postal address, though not a place of my own. I was stuck with my parents over Christmas and New Year before finding work, so I was only there for a few weeks. Regards, Michael

The Respondent's contentions

72. The Respondent contends that the Applicant retained the UK as his place of

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ATC 8961

residence and did not become a resident of Australia. He contends that:

• (a) the Applicant entered Australia with a working holiday visa, for which the Applicant was required to satisfy the Minister that he seeks to enter or remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia;
• (b) the Applicant made admissions on each of the relevant passenger cards that he was a UK resident who was entering Australia as a visitor or on a temporary basis. While the Applicant declared that he intended to spend only six months in Australia for the purpose of employment on his incoming passenger card for his second entry to Australia, for employment to suggest that there is an intention to live in Australia, this employment must be more than being a mere traveller or visitor gaining temporary employment for necessary income;
• (c) the Applicant's employment circumstance did not suggest he intended to live in Australia in the requisite sense. Entering Australia to pursue ongoing pre-arranged employment stands in a different position to entering Australia without any organised employment which was the Applicant's circumstance. The Applicant came to Australia with the intention of finding employment. The majority of the employment applications or job enquiries submitted by the Applicant specified the remaining time that he had under his Working Holiday visa. Those applications suggests a finite period of time the Applicant intended to stay in Australia rather than an intention to live here. Persistence in seeking job opportunities within an industry relevant to the Applicant's education is not evidence of his intention to reside in Australia, as submitted by the Applicant. Rather, this is simply evidence that the Applicant had a preference to find a job relevant to his education as opposed to doing lower-paid unskilled casual jobs that are easier to find for foreigners on working holiday visas;
• (d) The Applicant's continued family ties with the UK do not support the contention that was residing in Australia during his working holiday. The Applicant's family remained in the UK, where he always had the option of returning. The Applicant was living with his parents prior to departing the UK, and subsequently returned to his parents' home when he returned to the UK. Whilst the Applicant was in Australia, he stored his remaining personal belongings at his UK home where he usually lived with his parents, and his overseas mail was sent to his (parents) UK home. That place was maintained as the Applicant's place of residence;
• (e) the only assets the Applicant had whilst in Australia was a bank account for receipt of the Applicant's income while working in Australia, and some personal household items purchased for living. These assets were all disposed of when the Applicant departed from Australia;
• (f) the Applicant lived in short-term stays using the Airbnb and two short-term accommodations in the Melbourne region before travelling around Western Australia prior to returning to his home in the UK. Each was shared or short term accommodation of the character generally used by temporary visitors and working holiday makers, not by residents who establish a continuity of association with Australia through long-term residential tenancy obligations or the purchase of a home in Australia;
• (g) the Applicant's presence in Australia was short - 261 days while on his Working Holiday visa. The Applicant did not 'dwell permanently or for a considerable time' in Australia;
• (h) the Applicant did not establish any continuity of association with Australia;
• (i) the Applicant's 'habits and conduct' did not reflect the settled way of life of a resident. He lived in various different places during his eight month working holiday, all for less than six months each, and he worked in various labour hire and short term employment positions. This reflects the itinerant nature of his working holiday, and that his basis of presence in Australia under his working holiday visa was

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  ATC 8962

  as a genuine visitor for the principal purpose of holidaying;
• (j) the Applicant left the UK for pleasure, and not to take up residence in Australia. He maintained a continuity of association with the UK while physically absent through factors such as a home, family unit, possessions and relationships with people and institutions. By contrast, did not maintain any such continuity of association with Australia since he finished his working holiday; and
• (k) the Applicant's airline bookings are consistent with a working holiday intention and his explanations to the contrary are not to be accepted.

73. The Respondent concludes that the Applicant's intention to reside in Australia was contingent on a future event occurring, that being securing permanent employment as an engineer. If this did not occur, he only intended to remain in Australia for the duration of his working holiday. As the Applicant was unable to gain employment in the field of engineering or secure sponsorship by an employer, the Respondent contends that the requisite event that could give rise to the Applicant's intention to reside in Australia did not occur. As the Applicant's intention to reside in Australia was dependant on a future event that did not take place, during the period the Applicant was in Australia he could not have been said to have formed an intention to reside in Australia.

CONSIDERATION

74. The facts in the present application stand in stark contrast to the facts relevant in Addy.

75. In Addy the taxpayer maintained a continuity of association and place of residence in England albeit she was absent from England on a working holiday. Ms Addy's room at her parents' house continued to house her valued possessions, her furniture and was largely untouched and in a substantially identical state upon her return to England to the state that it was in when she departed on her holiday. Her personal photos remained on the walls in her room, her collection of DVDs, her saxophone, her books, her childhood memorabilia and her winter clothes. In other words, apart from one suitcase of clothes which she brought to Australia, her personal possessions remained in her room at the family home.^[38] Addy at [78(c)], Derrington J. Her accommodation in Australia was more transitory and in keeping with the style of accommodation that could be expected of a young person on a working holiday.^[39] Addy at [80], Derrington J. Her employment arrangements and the nature of her employment duties was entirely consistent with somebody on a working holiday. Ms Addy's actual intention was to holiday in Australia rather than to establish a home here.^[40] Addy at [81], Derrington J.

76. Nor are the present circumstances parallel to those in the MacKinnon decision.^[41] MacKinnon and Commissioner of Taxation [2020] AATA 1647 . Ms MacKinnon was not in a relationship with anybody in Australia,^[42] At [20]. continued to have her mail received by her parents at their residence in the United Kingdom,^[43] At [22]. had hostel-styled accommodation facilities or stayed with friends at their accommodation in Australia,^[44] At [25], [26] and [41]. worked in a café, hotels and farms,^[45] At [29], [30] and [35]. and well after her arrival in Australia formed a liking for the country and began thinking about finding sponsorship and a different type of visa to allow her to stay longer^[46] At [32]. which she did not attempt to execute. Ms MacKinnon never formed an intention to be in Australia as anything more than a holidaymaker working here to support herself.

77. In the present circumstances the Applicant sold or otherwise disposed of all of his assets in England other than some books that were impractical for him to travel with, and which were stored at his parents' home, and a bank account with a nominal balance left in the UK. The Applicant's employment preferences and employment ultimately secured in Australia was of a kind consistent with advancement of a career and the Applicant's accommodation was of a more permanent nature than was the case for Ms Addy and Ms MacKinnon. Focusing on the Applicant's activities beyond accommodation and shelter arrangements, before and after his period of presence in Australia, and comparing those activities with the activities undertaken during that presence in Australia reveals little change. He participated in organised sporting activities, explored surrounding countryside, attended events and gigs both before, during his presence in Australia, and after he returned to the United Kingdom. The Applicant's settled way of life continued in

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ATC 8963

Australia during his presence here and continued in much the same manner upon his return to the UK.

78. The fact of a 417 visa is something that cannot be ignored. It might indicate that its holder intends as the name suggests,^[47] Addy at [81], Derrington J. however in some circumstances it might not, and because there might be such circumstances a broader enquiry of all of the circumstances in which documents are completed is called for.

79. The Applicant's statements in incoming and outgoing passenger cards submitted for immigration purposes are of some significance, as they must be,^[48] Addy at [82], Derrington J. but not overwhelming significance in all of the circumstances. The Applicant made statements with a belief that residence and citizenship were the same in this context, that were consistent with what he was entitled to do in terms of his visa and notably on his first entry to Australia recorded different reasons for his visit in Australia to his second entry to Australia which was on a different basis to his first, very short-lived, holiday presence in Tasmania. Whilst the statements as to residence cannot be ignored,^[49] Addy at [82], Derrington J. the weight to be given to such matters will vary in every case, usually it might not be thought to be inappropriate to start by assuming that the taxpayer's statements on such documents are true. ^[50] Addy at [82], Derrington J. Because weight might vary, it is necessary, again, to have regard to the whole context. The context reveals a factual setting, that occurred broadly in the in the following order of events, and a person:

• (a) who, at least until he realised it was not going to be possible well after he arrived in Australia, had an intention, hope and expectation to come to Australia to live and work in a career oriented role on an indefinite basis;
• (b) who abandoned his place of residence in the UK;
• (c) who travelled from the UK to the Philippines and then to New Zealand;
• (d) who applied for a long term skilled entrant visa that would allow him to live and work in Australia for an extended period;
• (e) who booked a non-refundable flight from New Zealand to Melbourne arriving on 28 February 2016;
• (f) whose girlfriend was also booked on a flight from the UK to Melbourne arriving on 28 February 2016;
• (g) who entered Australia on a genuine, and brief (December 2015 to January 2016), holiday trip to Tasmania, and said as much on his entry form, and returned to New Zealand at the end of that holiday trip;
• (h) who learned that the processing time for the visa sought would not accommodate the 28 February 2016 booked entry date;
• (i) without any substantive changes to his intentions, hopes and expectations, who sought a 417 visa so as to allow entry to Australia on 28 February 2016, and immediate employment in Australia on a short term basis, without abandoning his flight booking and without missing the date his girlfriend was to arrive from the UK;
• (j) again without any relevant change to his intentions, hopes and expectations, who abandoned the 476 visa application in the hope of obtaining a refund of the application and processing fee;
• (k) knowing the limitations imposed by the 417 visa he had, who entered Australia for the second time on 28 February 2016 with the hope, expectation and intention to change the basis upon which he was permitted to stay in Australia to an indefinite basis engaged in career based employment and making Australia his home for an indefinite period;
• (l) who disclosed entry information that was consistent with his then operative entry and presence entitlements and which were not inconsistent with his hopes, expectations and intentions;
• (m) who found more than temporary accommodation and lodgings relatively quickly;
• (n) who set about seeking out longer term career oriented employment that would allow an alteration to his then operative visa status;
• (o) who set about making Melbourne his home for the time being and engaging in a Melbournian lifestyle;
• (p) who secured career oriented employment;

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  ATC 8964

• (q) sought out sponsorship from his employer to allow a change to his visa status;
• (r) was unable to procure the sponsorship he needed; and
• (s) abandoned his plans and returned permanently to the UK after short holidays in Western Australia and Sri Lanka.

80. When the Applicant answered questions concerning residence in a taxation context while he was in Australia, he recorded that he was resident in Australia.

81. In circumstances where there is limited continuity of association with England, namely parents and a sibling continuing to reside in England, parents owning a home into which the applicant would be taken in at any time if the need arose, and books and a modest bank account balance, which are insufficient to constitute residence within the ordinary meaning of the word in the United Kingdom and intention to live on an indefinite basis as revealed by the context in which the statements were made, the statements ought not be, are not, afforded determinative weight.

82. The Applicant was present in Australia for a sufficiently lengthy period to raise a realistic proposition that Australia was the place where he lived from February 2016 to October 2016. Had employment arrangements worked out, that period would have been longer.

83. The Applicant's connection with England while he was present in Australia was properly characterised as historical. He had family there; namely his parents and a sibling for whom he did not have responsibility. An absent child or sibling who:

• (a) has no ongoing responsibilities for parents or siblings;
• (b) has his own personal relationships with those present with him; and
• (c) is beginning to make his own way in adult life,

stands in a very different position to an absent family member who continues to maintain and provide for other family members while temporarily absent. The fact of the Applicant's parents and sibling continuing to live in the UK while he was present in Australia does not add material weight to a suggestion of retained UK residence.

84. The Applicant's return to his parents' home for Christmas 2016 can be properly seen as a temporary stopover rather than as trips returning to his home. The continued relationship is properly described as one where they would take him in if needed. Having relationships with people, be they family or friends, that are such that they would take you in if needed, does not make their homes ones place of residence during periods of absence. More is required. More was established in Addy. Here, the Applicant can properly be seen as an adult child who left his former home indefinitely, not one who retained his former home intact during a period of intended temporary absence.

85. The Applicant has residual investments in the UK were purely nominal. They can be ignored.

86. The Applicant's life was in Australia. He worked in Australia, was in a relationship with someone who was with him in Australia, intended to make his life in Australia on an indefinite basis but was unable to alter his visa and employment arrangements.

87. The Respondent's contentions might be accepted if some critical facts are ignored. Those facts are that:

• (a) unlike the circumstance in Addy, the Applicant did not maintain a UK place of residence;
• (b) the Applicant sought the type of visa entirely consistent with someone coming to live in Australia and his withdrawal of that application has been explained in a way that is consistent with maintenance of his original intention when he made the application;
• (c) the Applicant completed incoming and outgoing passenger cards with an understanding that residence meant citizenship;
• (d) the Applicant applied for jobs telling prospective employers of his intent to get a foot in the door, of his then current arrangements and his sponsorship plans so as to stay more permanently;

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  ATC 8965

• (e) the Applicant's lifestyle in Australia while working in Melbourne was materially the same as it is in the UK where he is undoubtedly resident;
• (f) the Applicant had assets in Australia of the kind he had in the UK where he was undoubtedly resident before he departed in April 2015 and disposed of those assets when he abandoned his intentions to live in Australia just as he did when he abandoned residence in the UK.

88. Being a question of fact and degree, and with a test that allows an Australian residence conclusion where the relevant intention can be to live in Australia temporarily, the conclusion to be reached is that the Applicant came to Australia with a working holiday visa as a substitute for the original visa sought, and needed that substitute for a particular reason, with the intention and expectation to live here and the expectation and hope that once here, he would change his arrangements and entitlements to execute his intention, and remain here indefinitely. Further, he continued to have that intention until it became clear that he would not be able to achieve his objectives in or shortly before October 2016. That conclusion means that while here, the Applicant was a resident of Australia.

DECISION

89. The Tribunal sets aside the decision under review and in lieu thereof allows the Applicant's objection and remits the underlying assessment back to the Respondent for amendment.