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Residing in Australia
Last amended: 21 July 2008
Overview
In order to establish residency, it must first be decided if a person is an Australian resident. The first criteria for being an Australian resident is for a person to reside in Australia. Below are details of what constitutes a person who can be considered to “reside in Australia”.
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Definition
A person is accepted as residing in Australia if:
- the person is in Australia; and
- the decision maker considers it is the person's intention to establish a home in Australia (in contrast to being a visitor).
Factors to be considered
The question of whether a person is residing in Australia must be decided on the evidence available in each case. The factors that are to be taken into consideration include:
- the person's legal residency status in Australia and the history of the person's residence and movements;
- the purpose and expected length of the person's stay in Australia as notified to the Department of Immigration and Border Protection;
- if the person often travels to and from Australia, the frequency, purpose, regularity and length of these visits;
- whether the person spends more time in Australia than overseas;
- the person's accommodation arrangements, and whether or not they have made provision for an extended period of accommodation in Australia;
- the person's family relationships in Australia;
- the nature and extent of assets, employment, business, or financial ties with Australia; and
- any other relevant matter.
Note: 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.
Careful assessment of a person's overall intent to establish themselves permanently in Australia is particularly important where a test of continuous residency applies.
Short-term Residence
In all cases, the applicant must be in Australia on a permanent basis. The VEA prohibits portability of pension where a claim is based on short-term residence.
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An Australian resident is a person who:
- resides in Australia; and
- is one of the following:
- an Australian citizen;
- the holder of a permanent visa;
- the holder of a special category visa who is likely to remain permanently in Australia;
- the holder of a special purpose visa who is likely to remain permanently in Australia.
Australia is defined in the Acts Interpretations Act 1901 and includes the following territories and Islands:
- Christmas Island
- Cocos (Keeling) Islands
Subsection 5Q(1) of the VEA provides specifically that the definition of Australia includes the external territories for many VEA purposes including Part III, IIIAB, some parts of Part IIIB, Parts IIID, VIIA, VIIC and sections 52ZO, 58A, and 132. Norfolk Island is currently the only external territory of Australia. For the above VEA sections, which cover service pension, [glossary:income support supplement:118], pension bonus, pension loans scheme, Veterans supplement, pension supplement and Commonwealth Seniors Health Card purposes it is considered to be part of Australia. The test of residing in Australia does not by itself satisfy the full definition of Australian Resident, as residency also requires Australian citizenship or the holding of a specified visa.
Papua New Guinea and Nauru have both previously been external territories of Australia. Lord Howe Island and Macquarie Island, formerly regarded as separate islands, are now part of mainland NSW and Tasmania respectively.