2.1.2.10 Residence requirements
Summary
This topic provides information about the residence requirements for FA and includes the following:
- general residence requirements
- exception to residence requirements for FTB
- exceptions to residence requirements for CCS, and
- determining whether an individual resides in Australia (1.1.A.120).
General residence requirements
To be eligible for FTB and CCS an individual (1.1.I.90) must be an Australian resident (1.1.A.130) or an SCV (1.1.V.10) holder (New Zealand citizen) residing in Australia, unless the exceptions given below in this topic apply.
From 1 January 2019, a NARWP applies to FTB Part A. There is no NARWP for FTB Part B. There are a range of exemptions from the NARWP for FTB and situations where the NARWP does not apply (2.2.1.10).
To be eligible for SBP under the 6 month income test, an individual must have otherwise been eligible for FTB if the child was not stillborn (disregarding the FTB income test) within 26 weeks starting on the day of the child's delivery. Therefore, the FTB residency requirements detailed in this topic also apply to SBP claimants who are paid under the 6 month SBP income test. Where an SBP claimant does not meet FTB residence requirements under the 6 month SBP income test, they may be eligible to receive SBP if their partner (1.1.P.30) is eligible to receive FTB Part A at a rate greater than nil in relation to a day that is within 52 weeks beginning on the day of the stillborn child's delivery.
For an individual to be an FTB child they must also be an Australian resident or an SCV holder residing in Australia or they must live with an individual who meets the requirements.
To be an Australian resident the individual must not only have the right to live in Australia permanently, they must also be residing in Australia. An Australian citizen, who lives overseas permanently, or indefinitely, is generally not considered to be an Australian resident for FA purposes because they do not currently live in Australia.
As a result of changes to the SSAct on 26 February 2001, SCV holders (those travelling on a New Zealand passport) who arrived after that date no longer meet the definition of Australian resident for social security payments unless they were assessed as having protected SCV status. SCV holders can continue to fulfil the residence requirements for FTB and CCS if they are residing in Australia.
In deciding whether a child is 'living with' the individual for the purposes of the residence requirements, the ordinary meaning of 'living' should be used, that is, residing, dwelling or occupying a place as a domicile. The period of time that the child has been staying with the individual may also be considered. A short period of staying with the child or visiting the child while the child is still residing overseas is not likely to constitute living with the individual.
In deciding whether an individual who is temporarily absent from the child is still living with the child, the decision maker should consider whether the child and the individual still share and live in the same home. If the individual has gone away on a business trip, a holiday or to visit family, generally the individual's home would still be the same as the child's. Generally, such trips away from home would be quite short (up to about 4 weeks) and very finite. However, if the individual has established a new home (e.g. has migrated to a new country, returned to live in their country of residence or commenced living overseas on a work posting), the child should not be considered to be living with the individual.
Example 1: While on a holiday overseas, Ben, who is an Australian resident, commences a relationship with a non-Australian resident who becomes pregnant. Ben returns to Australia prior to the child's birth because his holiday has ended. After the birth, the child remains overseas with her mother while they wait for Australian visas to be issued. At the time, neither the child nor her mother is an Australian resident as they do not hold an appropriate visa and do not reside in Australia.
After the birth of the child, Ben travels back overseas to visit his child for a short period and then returns to Australia leaving the child and her mother overseas. During the period that Ben is overseas, he is regarded as continuing to reside in Australia and to continue to be an Australian resident. During that period, Ben is also regarded as 'living' in Australia, despite being physically absent from Australia (1.1.A.10) for a temporary period.
The child is regarded as 'living with' her mother, who is not living in Australia. During the short period of Ben's visit to his child, the child is not regarded as 'living with' Ben as it is a temporary arrangement. In these circumstances the child is not an FTB child of Ben.
Example 2: John is an Australian citizen whose Australian employer has sent him on a work posting to the UK for a period of 2 years. John holds a visa which allows him to work temporarily in the UK. John commences a relationship with Mary who is a UK citizen. Mary gives birth to a child, Anna. John, Mary and Anna commence living together in rental accommodation.
John and Mary plan to move to Australia permanently as soon as John's work posting is finished. Mary applies for a permanent Australian visa for herself and citizenship by descent for Anna, on the basis of their relationship with John.
When Anna is 3 months old, John is required by his employer to attend training in Australia for a period of 2 weeks.
Anna is not an Australian resident because she does not hold an appropriate visa and she is not an Australian citizen. It is likely that John would be considered an Australian resident because he is an Australian citizen, his employment ties are to Australia, he owns a house and other assets in Australia and he plans to commence living permanently with his family in Australia in the near future. Factors to consider when deciding whether an individual is residing in Australia are discussed under 'Determining Australian residence' below.
While John is in the UK, Anna is living with John. When John goes to Australia for 2 weeks to attend training, Anna would probably still be considered to be living with John because his absence from the family home in the UK is only for a short period.
Act reference: FAAct section 3(1)-'Australian resident', section 61AA Part A rate of FTB is nil for a day in newly arrived resident's waiting period, section 21(1) When an individual is eligible for FTB in normal circumstances, section 22 When an individual is an FTB child of another individual, section 36 When an individual is eligible for SBP in normal circumstances, section 85BA(1) Eligibility for CCS, section 85BB Residency requirements
SSAct section 7(2) An Australian resident is a person who …, section 7(3) … whether or not a person is residing in Australia …
Policy reference: FA Guide 2.1.2.20 Verifying residence/citizenship, 2.1.1.10 FTB child, 2.2.1 FTB eligibility criteria for individuals, 2.6.1 CCS eligibility, 2.12.1 SBP eligibility criteria, 2.2.1.10 NARWP for FTB Part A
Exception to residence requirements for FTB
An individual who qualifies for SpB under SSAct section 729(2)(f)(v) and who is in Australia or temporarily absent from Australia does not have to satisfy the residence requirements under SSAct section 7(2). The individual does not need to receive SpB. See the table below for these exceptions.
| Exception | More detail |
|---|---|
|
The holder of a visa that qualifies for SpB. Note: The following visa subclasses generally have a visa travel facility that would enable the holder to be temporarily absent from Australia:
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The following visa subclasses qualify for SpB and may therefore meet FTB eligibility requirements, subject to meeting other eligibility criteria:
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*Subject to approval from the Department of Home Affairs, a subclass 785 (class XD) or 790 visa holder may be eligible to travel overseas and re-enter Australia where the holder can demonstrate compassionate or compelling circumstances.
Visa subclass 447 was abolished from 9 August 2008 but visas already issued under this subclass will remain valid until they expire or the holders are granted another visa.
Visa subclass 695 was abolished on 9 August 2008 and has not been granted since that date. They were only effective for 18 months from the date of grant.
Note: A NARWP applies to a person who becomes the holder of a visa under SSAct section 729(2)(f)(v) on or after 1 January 2019. Exemptions apply to holders of some of these visa subclasses. Time spent outside Australia does not count towards the NARWP (2.2.1.10).
Act reference: FAAct section 21(1) When an individual is eligible for FTB in normal circumstances, section 61AA Part A rate of FTB is nil for a day in newly arrived resident's waiting period
SSAct section 7(2) An Australian resident is a person who …, section 729(2)(f) Qualification for SpB
Social Security (Class of Visas - Qualification for Special Benefit) Determination 2015 (No. 2)
Policy reference: FA Guide 2.2.1.10 NARWP for FTB Part A
SS Guide 3.7.1.10 Qualification for SpB, 9.2 Visa subclasses & payment eligibility for visas issued after 1/9/94
Exceptions to residence requirements for CCS
An individual who is not an Australian resident may still be eligible for CCS if their circumstances are an exception to the residence requirements.
For more detailed information on the CCS residency requirements exceptions, see 2.6.2.20.
Act reference: FAAct section 85BB Residency requirements
Policy reference: FA Guide 2.6.1 CCS eligibility, 2.6.2 CCS eligibility exceptions
SS Guide 9.2 Visa subclasses & payment eligibility for visas issued after 1/9/94
Determining whether an individual resides in Australia
To be eligible for FTB and CCS an individual must not only be an Australian resident and have the right to live permanently in Australia, but also:
- be living in Australia
- intend to remain in Australia, or
- intend to set up permanent residence in Australia.
SSAct section 7(3) lists the factors to be taken into account in deciding whether a person is residing in Australia. The key point is to establish that Australia is the person's settled or usual place of abode - for example, that the person makes Australia his or her home. It is not generally possible for a person to be residing in more than one country at the same time. In most cases, the balance of a person's ties will weigh more heavily in favour of one country than another. Note that it is just as important to take into account the converse of each factor. The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own.
The SSAct section 7(3) factors, and a brief discussion of each, are:
- the nature of the accommodation used by the person in Australia (see explanation 1)
- the nature and extent of the family relationships the person has in Australia (see explanation 2)
- the nature and extent of the person's employment, business or financial ties in Australia
- the nature and extent of the person's assets located in Australia (see explanation 3)
- the frequency and duration of the person's travel outside Australia (see explanation 4)
- any other matter relevant to determining whether the person intends to remain permanently in Australia (see explanation 5 and the example).
Explanation 1: A mortgage or rental lease in Australia is a good indication that a person is residing here. However, many people do not have such formal living arrangements. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country.
Explanation 2: As well as the nature and extent of the family relationships the person has in Australia, consideration must be given to the nature and extent of any family relationships the person has outside Australia. If the person has a spouse, where does the spouse live? If the person has dependent children, are the children enrolled in school in Australia?
Explanation 3: Assets such as bank accounts, investments, real estate, a car and furniture are useful indicators. However, care should be taken to ensure that poverty, lack of assets and lack of income are not counted against a person's claim to be residing in Australia.
Explanation 4: A person does not need to be continuously present in Australia in order to be residing here. A person holidaying, or working temporarily, overseas does not necessarily cease to reside in Australia while they are away. On the other hand, a person who spends more time overseas than in Australia would not usually be considered to be residing in Australia.
Explanation 5: This last provision is not intended to penalise people who plan to live overseas at some time in the future. It is intended to allow other factors to be taken into account, where relevant. It should be considered in the context of all the other SSAct section 7(3) factors.
Example: A return airfare to another country may indicate that a person does not intend to remain permanently in Australia, whereas a one-way ticket may indicate that a person intends to stay. However, such a factor should not be taken, of itself, to be conclusive evidence of a person's intentions.
The factors that would be relevant would depend on the circumstances of each case. A combination of these factors should be considered for a particular case. No one factor is likely to be enough to decide whether a person is, or is not, a resident. Considering the circumstances of each case and having applied the guidelines given above and if satisfactory answers have been provided then the person can be considered to be residing in Australia or as intending to reside permanently or indefinitely in Australia. Once a decision is taken that a person is residing in Australia and payment is granted, and subsequently when reviewed it is found that they have not made sufficient efforts to permanently reside in Australia as implied at the time of claim, then their entitlements to FTB and CCS may be stopped. SBP cannot be stopped, as it would have already been issued in full.
On a review if there is sufficient evidence to support the fact that an individual never intended to reside in Australia, FTB, SBP and CCS paid to the person may be a debt to the Commonwealth from the date of grant.