Evans and Commissioner of Taxation (Taxation)
[2025] ARTA 824
•25 June 2025
Evans and Commissioner of Taxation (Taxation) [2025] ARTA 824 (25 June 2025)
Applicant/s: Wayne Evans
Respondent: Commissioner of Taxation
Tribunal Number: 2023/8005
Tribunal:General Member R Smith
Place:Adelaide
Date:25 June 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 25 June 2025 at 12:08pm
General Member R Smith
Catchwords
TAXATION – residency for tax purposes – applicant working in Botswana – Covid 19 and border restrictions - whether are resident under the ordinary concepts test – physical presence – continuity of association -whether a resident under the domicile test - domicile of choice – permanent place of abode – decision affirmed
Legislation
Domicile Act 1982 (Cth), s 10
Income Tax Assessment Act 1997 )(Cth), s 995-1
Income Tax Assessment Act 1936 (Cth), s6(1)
Taxation Administration Act 1953 (Cth), s 14ZZKCases
Commissioner of Taxation v Addy [2020] FCAFC 135
Commissioner of Taxation v Miller [1946] HCA 23
FCT v Applegate (1979) 9 ATR 899
Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149
Hafza v Director-General of Social Security (1985) 6 FCR 444
Harding v Commissioner of Taxation [2018] FCA 837
Hua-Aus Pty Ltd v Commissioner of Taxation [2010] FCA 341 at [22]
Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation (1991) 22 ATR 148
Levene v Commissioners of Inland Revenue [1928] AC 217
Commissioners of Inland Revenue v Lysaght [1928] AC 234
Pike v Commissioner of Taxation [2020] FCAFC 158
Sneddon and Commissioner of Taxation [2012] AATA 516
Terrasin v Terrasin (1968) 14 FLR 151
Quy and Commissioner of Taxation (Taxation and business) [2025] ARTA 174Statement of Reasons
INTRODUCTION
The issue in this proceeding is whether the Applicant (also referred to in these reasons as Mr Evans) was a resident of Australia for tax purposes for the income year ended 30 June 2021(the Income Year) and is therefore required to pay tax on his foreign sourced income.
Mr Evans argued that because he was precluded from returning to Australia due to Covid travel restrictions and was therefore not physically present in Australia for approximately ten months of the Income Year, that he is not a resident for tax purposes. The Respondent (also referred to in these reasons as the Commissioner) disagrees.
BACKGROUND
Mr Evans was born in Australia and holds and Australian passport.[1] He has worked as a fly in fly out (FIFO) worker since 2012. It is not uncommon for him to spend more than half of each year outside Australia for work purposes.
[1] Exhibit R2, ST2
The Applicant’s employment contract
A copy of the Applicant’s contract of employment dated 21 October 2019 (the Contract) is in evidence before the Tribunal.[2] Although the document is not signed by Mr Evans, there does not seem to be any dispute that the terms of the Contract are applicable to the Income Year.
[2] Exhibit R2, ST5
The key provisions of the Contract are as follows:
·The Applicant was employed by Barminco Mining Services Botswana (Propriety) Limited (Barminco);
·The work Location is recorded as Khoemacau Copper Mines, Zone 5 and the Point of Hire Perth, Western Australia. Further, in accordance with the Contract, the employer could direct the Applicant to work in another location on either a temporary or permanent basis (clause 10 and schedule number 7 and 8);
·Barminco was responsible for transport from the departure point airport to site, return transport from site to the departure point airport, as well as accommodation and meals whilst rostered onsite (clause 11(b) and 14);
·The shift roster was 6-weeks on, 3 weeks off, although this was subject to change (clause 11, and schedule number 9);
·Resignation by the Applicant or termination by the employee (subject to the termination without notice provisions of the Contract) required one months notice (clause 25.1 and schedule number 11); and
·Mr Evans’ address is recorded as being in Western Australia.
Also in evidence before the Tribunal is a letter from Barminco[3] confirming that:
·Mr Evans was employed as a Jumbo Operator from 25 June 2020 to 20 June 2023;
·Flights to and from the point of hire as well as accommodation and meals while on shift were at the company expense; and
·The roster was 4 weeks on, 4 weeks off.[4]
[3] Exhibit R2, ST 7
[4] Although the contract provided for a roster of 6 weeks on, 4 weeks off it appears the roster during the term of the Applicants employment was actually 4 weeks on, 4 weeks off. Nothing in the decision turns on this change.
Travel movements and restrictions
The movement records of the Applicant for the Income Year show that:
·He departed Australia on 23 June 2020, not retuning again until 17 December 2020;
·He departed Australia on 26 January 2021, not retuning again until 23 March 2021; and
·He departed Australia on 11 May 2022, not returning again until November 2022 (which was after the conclusion of the Income Year).
From March 2020, the Australian government introduced broad international travel restrictions in response to the Covid crisis. On 20 March 2020, inward travel restrictions were placed on foreign nationals entering Australia and on 25 March 2020 outward restrictions on Australians travelling overseas were also introduced. In July 2020, incoming passenger caps were implemented at major international airports. All arrivals into Australia were required to comply with the quarantine requirements in the state or territory of arrival, and any other state or territories that they plan to travel to.[5]
[5] Report 494 Inquiry into the Department of Foreign Affairs and Trades Crisis Management Arrangements , Timeline of key events C. Timeline of key events – Parliament of Australia
Further, the Australian Government established a range of travel exemptions, which changed over time. Although no direct evidence on this point has been provided to the Tribunal, it is not in issue that Mr Evans held a travel exemption in the Income Year.
On 1 November 2021, Australian international borders were reopened to fully vaccinated Australians and eligible visa holders. By July 2022 all travel restrictions were lifted.[6]
[6] ibid
The movement records of the Applicant in the period following the Income Year reflect that as travel restrictions eased, that he returned to Australia more frequently. After his arrival in Australia in November 2021 he remained until 13 January 2022. Mr Evans returned to Australia on 20 February 2022 (until 23 March 2022), 1 May 2022 (until 24 May 2021) and 28 June 2022 (until 17 July 2022) whilst the restrictions remained in place. Upon the restrictions lifting, the records indicate his travel was in line with the rotating roster.
Income Tax Return
On 8 December 2021 the Applicant lodged his income tax return for the Income Year.[7] In that return Mr Evans confirmed he:
·Was an Australian resident
·Had a postal address and home address in Western Australia
·Had an Australian mobile phone number
·Maintained private health insurance in Australia
·Had three dependent children and a spouse
·Received gross rent of $22,080
·Did not own or have an interest in any assets located outside Australia with a total value of $50,000 or above
[7] Exhibit R1, T3
On 15 December 2021, the Commissioner issued a notice of assessment.[8] The Applicant’s assessed income was $70,370 based on a taxable income of $510,972.
[8] Exhibit R1, T4
Objection
On 13 April 2023, Mr Evans lodged an objection to the notice of assessment. [9] In the objection, the Applicant stated that: “Due to Covid 19 travel mandates and person (sic) travel into Australia I would like to claim non-resident for tax purposes … I was home less than 2 months in the 2020/2021 financial year. I rented in Botswana…”
[9] Exhibit R1, T5
As part of the objection process, Mr Evans completed a residency questionnaire which relevantly included the following responses:[10]
·He was a citizen of both Australia and Botswana;
·His country of origin was Australia;
·In response to the question “Was it your intention to stay permanently”, it states: “I am an Australian resident I wanted to be in Australia but due to government mandates due to covid I was not allowed”;
·He had a rented address in Botswana where he could return to live;
·He was a Botswana resident for tax purposes; and
·That he retained an investment property, a car, furniture and effects and the family home while in Botswana.
[10] Exhibit R1, T7
During the objection process, Mr Evans also confirmed:
·In a telephone conversation with the objections officer: that he usually worked a 28-day FIFO roster but was required to remain in Botswana longer due to Covid travel mandates. He also conceded that he was an Australian resident but he considered it unfair to be required to pay tax on his foreign sourced income when he was not allowed to return to Australia.[11]
·In an email exchange with the objections officer: that the travel ban also prevented his family from travelling to Botswana, that he maintained private accommodation separate to the work suite from his own resources and that although he did not join any clubs or groups, he did socialise with people he had met through work.[12]
·In a second telephone conversation with the objections officer: he befriended a dance instructor and bought outfits for the team when he visited Australia.[13]
[11] Exhibit R1, T6
[12] Exhibit R1, T8
[13] Exhibit R1, T9
On 30 August 2023, the Commissioner disallowed the objection in full and, in so doing, determined that the Applicant was an Australian resident for tax purposes in the Income Year as he satisfied both the ordinary concepts test and the domicile test.
Application for review
On 31 October 2023 the Applicant filed an application for a review of the objection decision of the Commissioner with the Tribunal. In the application, the ground of review is stated as follows:
“I don’t think that the decision was made fairly or lawfully. I was forced into non-residency by not being allowed to return to Australia on my normal shift panel. Having to set up postal addresses + renting a place to stay spending less than 3 months at home.”[14]
[14] Exhibit R1, T1
During the course of the review, Mr Evans provided to the Commissioner and the Tribunal the following documents:
·A scan of two pages from the Applicant’s Australian passport which record a work permit for Botswana, valid for the period 3 January 2020 to 1 December 2024;[15]
·Mailbox rental form for the address “PO Box 110 HAK Maun” dated 2 November 2020;[16]
·An undated letter from Mr Ryan Adams (Mr Adams) confirming that he rented a room to Mr Evans between July 2020 and June 2022 at Plot 22097, Matlapaneng Maun in Botswana; [17]
·Standard Chartered visa card [18]
[15] Exhibit R2, ST2
[16] Exhibit R2, ST3
[17] Exhibit R2, ST 6
[18] Exhibit A3
EVIDENCE OF THE APPLICANT
In addition to the response provided by Mr Evans to the Commissioner’s Statement of Facts, Issues and Contentions,[19] he also gave oral evidence as to his circumstances in the Income Year. He was cross-examined by the Commissioner.
[19] Exhibit A2
Mr Evans confirmed he has worked overseas as a FIFO employee and that in such a role it is not unusual to be physically absent from Australia for around six months every year.
He accepted the position with Barminco in November 2019 which was in the very early stages of the pandemic and before any travel restrictions were in place. It took some time before he was able to commence work in Botswana as he had to resign from his previous employment, organise particular travel documents and a travel exemption. He did not leave for Botswana until June 2020.
When he did finally leave Australia in June 2020, he did so on the understanding that he would return to Australia frequently and in accordance with the rotating roster. He had no intention of residing in Botswana, considered Australia to be his home and thought all of his off-shift time would be here, with the exception of perhaps a family holiday noting that his family had visited him during his previous overseas secondments.
Although he was aware of the travel restrictions in the months prior to leaving for Botswana, Mr Evans had thought the travel exemption would allow him to return to Australia regularly. It was not until he arrived in Botswana and his employer confirmed in a meeting with the staff that travel back to Australia would be difficult and restricted.
Mr Evan’s admitted in cross examination that he was primarily responsible for the financial support of his partner, Michelle Grace (Ms Grace) together with his children and he continued to provide financial support to them during the Income Year. The majority of his pay was paid into his Australian bank account.
Mr Evans stated in his evidence that when it became apparent that traveling back to Australia was going to be difficult and infrequent, his intentions in respect of Botswana changed. He decided to stay in Botswana as long as he had to, so he could continue to support the family in the uncertain times, and to “set up a life” there. He conceded in cross-examination that he wanted to be in Australia during his off-shift periods and it was the travel exemptions which precipitated the change his intentions. The exact timing of this change of intention was not precisely stated in the evidence, simply that it was shortly after he became aware that travelling home would be difficult.
Mr Evans purchased a local mobile phone, obtained a PO Box[20] and an African bank account. It was not clear from Mr Evans’ evidence whether these arrangements were put in place because he would be required to spend his off-shift time in Botswana, or whether he would have done so in any event. He also arranged to rent a room from Mr Adams (who was also a FIFO worker in Botswana) for use during his off-shift times. He stated in his evidence he spent more time with the African nationals he had met, watched a few soccer games and befriended a local dance instructor. He stated that he was not a member of any clubs or association in Botswana, but he also was not involved in those types of activities in Australia.
[20] The PO Box was shared with Ryan and Kirsty Adams and was not in his sole name.
In respect of the rental accommodation in Botswana, the Applicant confirmed he did so pursuant to a verbal agreement with Mr Adams. He paid rent monthly in cash. He initially acquired the room so he had somewhere to stay during his off-shift periods in Botswana. At the time, he did not know how long the travel restrictions would be in place for. In cross-examination he also stated that he maintained the room after the travel restrictions were lifted as it was more comfortable than the sponsored accommodation onsite. Although the accommodation was more spacious than the site facilities, his family could not have stayed there had they visited or relocated.
Mr Evans stated that he had spoken to Ms Grace about the family moving permanently to Botswana. His evidence on this topic was vague and lacked detail as to the exact steps taken in this regard (for example researching housing, schooling for his children, work/ social opportunities for Ms Grace or arrangements for Australian property and assets). There is no statement from Ms Grace confirming these conversations, nor was she called to give evidence. In any event, the plans did not eventuate.
In the Income Year, the Applicant confirmed that he returned to Australia twice. Upon his return he was required to isolate for 14 days before he could travel back to the family home. He gave evidence that he found it difficult to integrate back into family life when he was in Australia due to the length of time he was away. He tried to maintain regular contact with his family while he was abroad, which was more challenging with his teenage children. His relationship with Ms Grace and his children was strained when he was home which led to arguments. It was unclear from Mr Evans evidence whether this was the case in the Income Year only, or whether it persisted until he returned permanently from Botswana in May 2023.
Mr Evans agreed in cross-examination that the only reason he did not return home more frequently was because of the travel restrictions. He wanted to spend his off-duty time in Australia and had restrictions not been in place, he would have done so in accordance with the rotating roster. He also agreed that he was only in Botswana because of his employment and that his time there would always end when his employment in Botswana ended. He admitted that once the travel restrictions were lifted, he travelled back to Australia regularly in the off-shift periods.
He also acknowledged that he did not have an open-ended right to be in Botswana noting that the work permit only entitled him to be there for approximately five years and if his employment with Barminco ended, he would be required to return to Australia. His employment in Botswana came to an end in May 2023 and at that time he left Botswana permanently and has not returned.
Mr Evans did not dispute that he maintained assets in Australia while he was in Botswana. In respect of the vehicles, he clarified that although he may have had four cars registered in his name, only one of those vehicles, being the Toyota Hilux was used by him. The three other vehicles had been purchased on behalf of his children. The cars were not registered in their individual names for insurance purposes. He maintained his Australian mobile phone and bank accounts while in Botswana.
In response to a question about the investment property in his sole name, Mr Evans agreed that he did not take any steps to sell the property or dispose of any of his Australian interests. He explained that he did not think this was necessary in order to permanently move to Botswana.
THE RELEVANT LAW
Section 995-1 of the Income Tax Assessment Act 1997 (Cth) (ITAA 97) defines a ‘foreign resident’ as a person who is not resident in Australia for the purposes of the Income Tax Assessment Act 1936 (Cth) (ITAA 36)
In that same section, an ‘Australian resident’ is defined to mean a person who is a resident of Australia for the purposes of the ITAA 36.
For individuals, s 6(1)(a) of the ITAA 36 is relevant and contains 4 alternative tests as follows:
(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 person’s 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 the person’s usual place of abode is outside Australia and that the person does not intend to take up residence in Australia; or
(iii)who is:
(A) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(B) an eligible employee for the purposes of the Superannuation Act 1976; or
(C) the spouse, or a child under 16, of a person covered by sub‑subparagraph (A) or (B)
The ordinary concepts test is generally relevant when you are physically present in Australia and considers residency according to ordinary concepts. The other 3 tests being the domicile test, 183-day test and Commonwealth superannuation fund test work to expand the definition.[21] You are a resident if you meet any of the tests and so generally speaking you must consider all applicable tests before concluding the position on residency. For the purposes of this review, however, the parties agree that the 183-day test and the Commonwealth superfund test do not apply in this matter and need not be considered further.
[21] Harding v Commissioner of Taxation [2018] FCA 837 [6]
The term “resides”, and “permanent place of abode” are not defined in the legislation but the concepts have been developed over the years in the case law. Further, the Respondent has provided public guidance on the residency tests for individuals through a number of Taxation Rulings.[22] The Tribunal is not bound to follow these rulings, but to do so consistent with law and judicial authorities does promote consistency in decision making.
[22] Taxation Ruling TR 98/17 ‘Income tax: residency status of individuals entering Australia’ and Taxation Ruling IT 2650 ‘Income tax: residency – permanent place of abode outside Australia’, which were both withdrawn in 2022 but were operative during the Relevant Years. These public rulings were replaced by Taxation Ruling TR 2023/1 ‘Income tax: residency tests for individuals.’
Pursuant to s 6-5(2) of the ITAA 97, the assessable income of an Australian resident includes the ordinary income they derived directly or indirectly from all sources, whether in or out of Australia, during the income year. However, for a foreign resident the assessable income only includes ordinary income derived directly or indirectly from Australian sources, together with ordinary income that any other provision of the taxation legislation includes as assessable income.[23]
[23] s6-5(3) ITAA 97
Domicile is a common law concept which has been modified by the Domicile Act 1982(Cth)(Domicile Act). There are three basic types of domicile; domicile by origin, domicile by choice and domicile by operation of law.
Under s 10 of the Domicile Act, the intention 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.
THE ISSUES
The ultimate issue in this matter is whether the Applicant is able to prove on the balance of probabilities that the assessment is excessive or otherwise incorrect and what the assessment should have been.[24]
[24] S 14ZZK (b)(i) of the Taxation Administration Act 1953 (Cth)
More specifically and in the circumstances of this case, Mr Evans must establish in relation to the Income Year that he was not an Australian resident for tax purposes which requires consideration of whether the Applicant:
·was a resident of Australia according to “ordinary concepts”;
·has an Australian domicile; and if so
·whether he had a permanent place of abode outside Australia.
It is for the taxpayer to establish any fact demonstrating the assessment to be excessive.[25] It is a well-established principle that self- serving uncorroborated evidence or evidence of witnesses who have an interest in the outcome of litigation, needs to be approached critically.[26]
CONSIDERATION OF THE ISSUES
[25] Hua-Aus Pty Ltd v Commissioner of Taxation [2010] FCA 341 [22]
[26] Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149 [82] per Ryan, Jessup and Perram JJ; see also Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation (1991) 22 ATR 148; 91 ATC 4546
Ordinary concepts test
Under the ordinary concepts test, you are a resident if you reside in Australia. The word “reside” is not defined but is taken to have its ordinary meaning which has been expressed as 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in, or at a particular place'.[27] This is informed by the nature, duration and quality of the person's physical presence and an intention to treat Australia as home.[28]
[27] Commissioner of Taxation v Miller [1946] HCA 23; 73 CLR 93 [99], per Latham CJ, citing Viscount Cave LC in Levene v Inland Revenue Commissioners [1928] AC 217 at [222], who cited the Oxford English Dictionary.
[28] Commissioner of Taxation v Addy [2020] FCAFC 135 [76]
While physical presence is an important consideration, physical absence does not automatically mean non-residence.[29] The real question is whether the individual has maintained a “continuity of association” with Australia which is in turn established by considering all their connections to Australia.[30] A person does not cease to be a resident merely by their absence.
[29] Sneddon and Commissioner of Taxation [2012] AATA 516 [49]
[30] Hafza v Director-General of Social Security (1985) 6 FCR 444 [449]
In considering whether a person who is not physically present in Australia can still be regarded as residing in Australia, the intention of the person to return and treat it as their home is relevant. Regarding intention, the objective manifestation of a person’s intention is often a more accurate indicator of their past state of mind, than an assertion about that alleged prior intent.[31] Events occurring both before, and after the period under examination may also help inform the analysis.
[31] Harding v Commissioner of Taxation [2018] FCA 837 [43]
A person may be a resident of more than one place at the same time and therefore being a resident of another country does not necessarily diminish any connection to Australia.[32] To compare a person’s connection to two countries and determine which one is dominant would cause the Tribunal to fall into error. Instead, the focus should be on whether the Applicant also resided in Australia in the relevant year.
[32] Commissioner of Taxation v Pike [2020] FCAFC 158 [16]
Generally speaking, individuals working overseas but who plan to keep returning to Australia for other work, family or social connections and with no definitive plan to abandon Australia are often still resident in Australia. This is to be distinguished from an individual who has relocated overseas and only returns on a temporary basis or to finalise their affairs, such that the connections to Australia are “remnants” of residency.[33]
[33] Harding v Commissioner of Taxation [2018] FCA 837 [84]
The cases (and the Respondent in its public guidance) discuss factors that would commonly be taken into account in determining whether a person has the relevant “continuity of association” with Australia such that they should be regarded as a resident. No single factor is necessarily decisive. The weight given to each factor varies depending on individual circumstances. Relevant factors are discussed in more detail below.
Physical presence in Australia
The period and purpose of a person’s physical presence in Australia may provide valuable insight into whether they have an intention to treat Australia as their home.
In this case, it is agreed between the parties that Mr Evans spent the significant majority of his time in Botswana during the Income Year, being a period of approximately ten months. The length of time spent by Mr Evans in Botswana was not through his choice but rather as a consequence of the Covid travel restrictions which impeded the normal operation of his rotating roster and his regular return to Australia. He gave evidence that he did not know until after he arrived in Botswana that his ordinary travel schedule would be interrupted in such a substantial way.
The lack of physical presence in Australia during the Income Year is the focus of the Applicant’s case in this matter. The substantial time spent in Botswana and the inability to return home were stated as the grounds of objection and then of the review.
Although limited physical presence would routinely be consistent with being a non-resident, it is not determinative. For a taxpayer who had previously spent a long period of time in Australia but in the relevant income year did not, the shorter period of physical presence may assume less relevance if the person has retained a continuity of association, together with an intention to return to Australia and an attitude that Australia remains their home.[34]
[34]Commissioner of Taxation v Addy [2020] FCAFC 135 [76]
Prior to the Income Year, Mr Evans had been in Australia consistently from December 2018. Following the end of the 2021 income year, Mr Evans completed a further lengthy period in Botswana before returning to Australia for another two months. By May 2022 the Applicant returned to his normal roster travel pattern of 4-week visits to Australia every 4 weeks until the conclusion of his work in Botswana in May 2023.
When Mr Evans did return to Australia in the Income Year, he stayed longer than what he would have done in accordance with the rotating roster. With the exception of the mandatory quarantine period, he spent that time in the family home. Following the end of the Income Year, Mr Evans also stayed in the family home each and every time he returned to Australia.
It is readily apparent from a review of Mr Evans travel movements over time that his extended absence from Australia was exclusively attributable to the travel restrictions which were imposed temporarily in response to the Covid-19 pandemic. This weighs against any significance being placed solely on his extended absence from Australia in the Income Year on the issue of residence.
It is not in dispute that in June 2020 when Mr Evans first left for Botswana that Australia was his home and he intended it to remain so. He says however, that this changed once it became apparent that because of the Covid restrictions he would be unable to travel back to Australia regularly. He decided at that time to “set up his life” in Botswana and to sever his ties with Australia. The alternative was to resign from Barminco during the uncertainties of Covid, which was an unappealing option.[35]
[35]Exhibit A2, Applicants response to the Commissioner’s Statement of Fats Issues and Contentions
The Tribunal recognises that Covid was a difficult and unpredictable time where things could change demonstrably at short notice. It was an anxious and worrying period for many in our community and the events and circumstances need to be viewed in this context.
There is some, albeit limited and generalised evidence that Mr Evans established a few ties to Botswana. He rented a room where he could stay during his off-shift time and obtained a bank account, mobile phone and PO box. He also gave evidence of socialising with Mr Adams and other workmates while off-shift.
Mr Evans’s time in Botswana was inextricably linked to his employment. He conceded in his evidence that he was the primary breadwinner of the family and that he was required to work in order to support them. His evidence was that he was prepared to stay working in Botswana for as long as he had to but when that employment ended, he would return to Australia.
The Tribunal accepts that Mr Evans in the face of the uncertainty of the pandemic and to preserve his employment, took some steps to make life in Botswana easier, more comfortable and agreeable. However, these steps are not evidence that Mr Evans changed a previously held intention to return to Australia or that Australia remained his home. Taken at the highest, the steps were the minimum necessary response to being required to spend more time in Botswana while off-shift. The arrangements for the room for example, lacked any formality or permanence and there is no evidence Mr Evans acquired his own furniture and effects to be used there. There is also no evidence the Applicant took any steps to finalise his affairs in Australia or otherwise permanently relocate to Africa. His Australian connections were interrupted only to the extent that he was required to remain in Botswana for longer periods than previously anticipated.
Mr Evans’ objective to “set up his life” in Botswana was by his own admission qualified by the requirement to work and the travel restrictions which prevented his regular return to Australia. This qualified intention is consistent with the other evidence, including the travel records which reveal that when the Covid restrictions were eased, Mr Evans returned to Australia in his off-duty periods rather than remain in Botswana; when his employment ended, he immediately returned to Australia; and his connections to Australia which are discussed further below. The existence of the qualification meant that his previously held intention to return to Australia and that it remained his home, did not ultimately change.
Family and other personal connections to Australia
Working overseas but returning to Australia from time to time to an established family and social life will often mean an individual is still residing in Australia, even if more time is spent overseas in the income year.[36] Simply having a connection to another country through work does not completely displace an ongoing connection to Australia.
[36] Commissioner of Taxation v Pike [2020] FCAFC 158
Mr Evans argued that little weight should be placed on his family connections in Australia as it is his residency status that is in issue and not theirs. It is not in dispute that his family are residents of Australia.[37] This submission misses the point of this analysis which is directed to the Applicant’s continuity of connection.
[37] Exhibit A2
At the time Mr Evans accepted the Contract he did so in the full knowledge that he would be away from home for extended periods of time, as he had done in previous roles from 2012 when he started FIFO work. His family was reliant on him to provide financial support not only during the Income Year but in the subsequent periods also.
During the Income Year, Ms Grace and Mr Evans’ three dependent children remained living in Australia. Ms Grace was also working during this period and the children were attending school and were involved in various extra-curricular activities. When he did return to Australia in the Income Year, Mr Evans stayed in the family home with his family but for the mandated quarantine periods. He is the owner of this home jointly with Ms Grace and he has primarily resided there since 2012.[38] All of his personal furniture and effects remained there during the Income Year and this is also the address used by the Applicant in his income tax return for the Income Year.
[38] Mr Evans gave evidence the house was rented out for a 2-year period while they lived at another property.
Mr Evans gave evidence of a tension in the household when he was in Australia and that it did not feel like “home” to him. Mr Evans agreed in his evidence this was likely caused by the fact he was away for much longer periods than anticipated due to the travel restrictions and extra stress on the family generally arising from the pandemic. Although the Tribunal acknowledges the personal impact on Mr Evans of those relationship challenges, this does not undermine the continuity of those Australian connections.
Following the end of the Income Year, Mr Evans stayed in the family home every time he returned to Australia. At the end of his employment with Barminco and at the conclusion of his time in Botswana he resumed living in the family home where he has remained since.
Mr Evans’s family did not travel to Botswana, even after the travel restrictions were lifted. Although he asserted an intention to relocate to Botswana with the family, the only evidence of this is the Applicant’s recent statements and there is no corroborating evidence of this matter.
The Court observed in Harding that “in all but the most exceptional circumstances” the maintenance of a house in Australia by an individual, and the maintenance of a family in that house, will be of “great significance’” in determining the individual’s residency for taxation purposes as this likely indicates an expectation of returning to that place and an enduring continuity of association with Australia.[39]
[39] Harding v Commissioner of Taxation [2018] FCA 837 [50]
Maintenance of property, investments and other assets in Australia
It is not in dispute that the Applicant retained real property in Australia which included a rental property (for which he received rental income in the Income Year) in addition to the family home. Mr Evans still owns both of these assets. He was also the registered owner of four cars, although the Applicant explained that three of the cars were purchased for his children to use. In addition, the Applicant maintained an Australian mobile phone, private health insurance, driver’s licence and bank account.
Employment and remuneration arrangements
The Applicant’s physical absence arose from his full- time employment in Botswana. The Contract of employment indicated that the point of hire was Western Australia, the Applicant was to work a rotating roster whereby he would return to Australia in his off-duty periods, the costs of the travel between Botswana and Australia would be covered by the employer and camp accommodation and meals were met by the employer. The letter of employment confirmed he was employed from June 2020 to June 2023. Upon the cessation of his employment, he immediately left Botswana.
Conclusion
The Tribunal is satisfied that the Applicant meets the ordinary concepts test for the following reasons:
(a)Although Mr Evans physical presence in Australia was very limited in the Income Year, this was only as a result of the Covid travel restrictions and therefore did not alter the intention of the Applicant to return to Australia when he was off-shift or when the employment in Botswana came to an end.
(b)The continuity of the connections to Australia which are demonstrated by:
(i)the Applicant’s spouse and dependent children, who remained in Australia in the family home during the Income Year and whom the Applicant financially supported during that time;
(ii)the maintenance of the family home by the Applicant in which he stayed upon his return to Australia and where his furniture and effects were located and where he returned upon the conclusion of his employment in Botswana;
(iii)the maintenance of other substantial assets during the Income Year; and
(iv)the Applicant was employed as a FIFO worker and while on-shift in Botswana, camp accommodation, meals and travel were paid for by the employer. The room rented from Mr Adams, mobile phone, PO Box and bank account were the minimum necessary arrangements required in response to Mr Evans being required to stay in Botswana during his off-shift time as a result of the travel restrictions;
(c)although of very minor weight and not decisive in this review, the Applicant has made a number of earlier statements admitting he is an Australian resident and that as a result of matters outside his control it is unfair for him to be taxed on his foreign sourced income.[40]
[40] For example, he conceded residency in the income tax return, in communications with an officer of the ATO as well as responses to the Residency Questionnaire.
The Domicile test
Even if the Tribunal is wrong in the assessment of the ordinary concepts test, where an individual is not a resident of Australia according to ordinary concepts, they may still be regarded as a resident under the domicile test. Under this definition, a person whose domicile is in Australia, is a resident unless that person’s permanent place of abode is outside Australia.
Did the Applicant have an Australian domicile?
A person can only have one domicile and that will ordinarily be their domicile of origin which is acquired at birth unless they subsequently acquire a domicile of choice. To acquire a domicile of choice you must have both lawful physical presence in a foreign country and an intention to make your home indefinitely in that country. A person alleging a change of domicile requires “clear and cogent evidence that the change has taken place”. [41]
[41] Terrassin v Terrassin (1968) 14 FLR 151 [154-155]
If an individual has an Australian domicile and is living outside Australia, they will retain that Australian domicile even if they are overseas for a substantial period of time if they intend to return to Australia at a particular time or anticipated event. A working visa, even for an extended period of time, would usually not be sufficient evidence of an intention to acquire a new domicile of choice.
This is to be contrasted with a nebulous possibility of returning to Australia, which is consistent with the intention required by law to acquire a domicile of choice in the foreign country. Obtaining a visa to migrate to a particular country is an example of an objective action consistent with an intention to make your home indefinitely in that country.
At the hearing Mr Evans appeared to argue that Botswana was his domicile of choice in the Income Year. In an exchange with the Tribunal in the closing submissions on this topic, it appeared that Mr Evans may have conflated the concepts of “domicile” with “permanent place of abode”. However, for the sake of completeness, the Tribunal finds that Mr Evans did not acquire a domicile of choice in Botswana and that his domicile was Australia in the Income Year on the basis that:
·Mr Evans was only in Botswana for work purposes, which was also not for an unlimited period of time, noting his visa was only valid for 5 years and his contract could have been terminated on one months notice. It was always the case that when his employment ceased he would immediately return to Australia, which is exactly what he did less than 2 years after the conclusion of the Income Year. In this sense the intention any intention held in respect of lignin in Botswana was not indefinite;
·Mr Evans has consistently maintained that he wanted to be in Australia in his off-shift time and was precluded from doing so due to the Covid restrictions. It was not his choice to remain in Botswana during these times. Once those restrictions eased, he did return to Australia during those off-shift times. This is also inconsistent with an intention to make Botswana his home indefinitely;
·The room which was rented from Mr Adams was a necessary response to the travel restrictions and Mr Evans having to remain in Botswana during his off-shift periods. It demonstrates a change in living arrangements only;
·There is no evidence before the Tribunal that Mr Evans sought to live in Botswana indefinitely or conversely that he took any steps to finalise his affairs in Australia; and
·The prior inconsistent statements of Mr Evans that he was an Australian resident in the Income Year.
Permanent place of abode
An Australian-domiciled person is not a resident where the person's “permanent place of abode” is outside Australia. In order for the place of abode to be permanent, it is not necessary to have formed an intention to live or reside or have a place of abode outside Australia without any definite intention of ever returning to Australia. Rather, the question is whether the person has abandoned any residence or place of abode they may have had in Australia. It is to be contrasted with a ‘temporary’ or ‘transitory’ place of abode outside Australia.[42]
[42] Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1 [12]; Harding [45]
If an individual were to accept an overseas employment opportunity with no fixed timeframe but in so doing pack up their home in Australia, set up a home in that country and live there with their family returning only occasionally, then they have abandoned Australia as a place of residency and commenced living permanently overseas. This is the case even if they may at some point intend to return to Australia.
In other words, the question of whether a person has a permanent place of abode outside Australia goes beyond whether they can demonstrate that they were living, working and socialising in another place, even for an extended period of time. They must demonstrate that they have abandoned their residence in Australia and established a place where they are residing permanently as opposed to a temporary basis, even if not indefinitely. [43] Many of the factual findings discussed by the Tribunal in respect of the ordinary concepts test are relevant to whether the Applicant has demonstrated he established a permanent place of abode outside Australia.
[43] Quy and Commissioner of Taxation (Taxation and business) [2025] ARTA 174 [124]
The Commissioner argued that even though Mr Evans was physically present in Botswana for the Income Year, there is no probative evidence consistent with an intention to leave his residence in Australia and set up a permanent place of abode in Africa. Instead, the contemporaneous evidence is inconsistent with this intention because:
·The Applicant was present in Botswana solely for work purposes, a matter which is admitted by him, and those arrangements were finite in nature and duration;
·Mr Evans agrees that time spent in Botswana in his off-duty periods by Mr Evans was not through his choice but rather imposed as a consequence of the Covid travel restrictions. Upon the revocation of those travel restrictions he returned to Australia for all of his off-duty time;
·The living arrangements put in place by the Applicant was in response to and a consequence of having to remain in Botswana during his off-duty times due to the travel restrictions. The essential character of those arrangements was temporary and uncertain; and
·The Applicant's ongoing association with Australia, including his family and financial circumstances.
Mr Evans argued that he intended to live in Botswana for as long as he had to and made arrangements accordingly. On this basis, his place of abode in Botswana had the level of permanence required by the domicile test.
The Tribunal agrees with the Commissioner the Applicant has not established on the evidence that he abandoned Australia as a place of residency and that he commenced living overseas permanently. He left Australia in June 2020 to work on a FIFO basis in Botswana. He did so in the full knowledge that he would be away from home for extended periods of time, but with the intention to spend his off-duty time in Australia until the conclusion of the assignment when he would return permanently. None of this changed with the imposition of the Covid travel restrictions.
The impact of the travel restrictions was limited to Mr Evans being able to travel more frequently to Australia in the Income Year. It did not affect the fact that the Applicant was in Botswana for work, and only for so long as that work lasted or his connections to Australia. To the extent arrangements were put in place, they were a temporary response to the Covid travel restrictions which necessitated a stay in Botswana during his off-shift time and did not amount to a permanent place of abode.
CONCLUSION
For the reasons given above, the Applicant was:
(d)a resident of Australia under the ordinary concepts test;
(e)a person whose domicile was in Australia; and
(f)He did not have a permanent place of abode outside Australia in the Income Year.
Therefore, the objection decision of the Respondent that the Applicant was a resident of Australia for the purposes of the definition in s 6(1) of the ITAA 1936 is the correct and preferable decision.
DECISION
The Tribunal affirms the decision under review.
Date(s) of hearing: 31 March 2025 Date final submissions received: 31 March 2025 Applicant: In person Counsel for the Respondent: Ms F Maher Solicitors for the Respondent: Litigation and Legal Services
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