1.6.3 Resident of a Reciprocating Jurisdiction
In some circumstances it is necessary for the Registrar to determine whether a person is a resident of a country other than Australia. In these cases the decision needs to be made using ordinary concepts in relation to residency.
Reciprocating jurisdiction residency
The CSA Act and the CSRC Act provide for certain actions to be taken where a person is a resident of a reciprocating jurisdiction (1.5.1).
A person is a resident of a reciprocating jurisdiction if they are habitually resident in the reciprocating jurisdiction (CSRC Act section 4). In making a decision about whether a person is a resident of a reciprocating jurisdiction the ordinary meaning of 'resident' needs to be considered.
The Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time'.
A person who has always lived in a reciprocating jurisdiction will be resident there.
A person who has moved to a reciprocating jurisdiction from another country intending to reside there permanently will generally be a resident of that country from the time they arrive.
Where a person has arrived in a reciprocating jurisdiction and they are not intending to reside there permanently or their intention is not clear, the Registrar will take into account all the following factors when deciding if they are resident in the reciprocating jurisdiction:
- the reason for the person's presence in the country,
- the actual and intended length of the person's stay,
- the person's family and business/employment ties in the reciprocating jurisdiction and any other country, and
- the person's social and living arrangements in the reciprocating jurisdiction and any other country.
The weight given to each factor will vary according to the circumstances of the individual.
Australian residency statutory tests
The tests that apply specifically to whether a person is a resident of Australia for tax purposes (i.e. domicile test, 183 day rule test and superannuation test) cannot be used to determine whether a person is a resident of a country other than Australia.
See 1.6.1 for more information about those tests.
In some circumstances it may be possible for a person to be a resident of Australia for tax purposes (using the statutory tests) but at the same time 'habitually resident' in another country. In that case, the person will be considered to be a resident of Australia for the purposes of the CSA Act, but cannot be considered to be a resident of Australia for the purposes of the CSRC Act (CSRC Act section 4).
Example: Emily leaves Australia to work in Singapore. She has a one-year contract, after which she plans to return to Australia to resume work here. While in Singapore she lives with a family who treats her as one of their own and she participates in all her usual social and work-related activities in Singapore.
Under ordinary concepts of residency, Emily may be considered to be resident in Singapore, as that is where she is living and is settled for a period of time. However, she may also still be an Australian resident for tax purposes under the domicile test, as her domicile is in Australia and her permanent place of abode remains in Australia.