1. 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?

1. 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]
2. 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.
3. 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.
4. 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.

1. 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]
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

1. 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.

2. 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.

1. The Tribunal affirms the decision under review.

[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.

[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

[20] The PO Box was shared with Ryan and Kirsty Adams and was not in his sole name.

[21] Harding v Commissioner of Taxation [2018] FCA 837 [6]

[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.'

[23] s6-5(3) ITAA 97

[24] S 14ZZK (b)(i) of the Taxation Administration Act 1953 (Cth)

[25] Hua-Aus Pty Ltd v Commissioner of Taxation [2010] FCA 341 [22]

[26] Federal Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74; (2011) 193 FCR 149 [82] per Ryan, Jessup and Perram JJ; see also Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation [1991] FCA 276; (1991) 22 ATR 148; 91 ATC 4546

[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] UKHL 1; [1928] AC 217 at [222], who cited the Oxford English Dictionary.

[28] Commissioner of Taxation v Addy [2020] FCAFC 135 [76]

[29] Sneddon and Commissioner of Taxation [2012] AATA 516 [49]

[30] Hafza v Director-General of Social Security (1985) 6 FCR 444 [449]

[31] Harding v Commissioner of Taxation [2018] FCA 837 [43]

[32] Commissioner of Taxation v Pike [2020] FCAFC 158 [16]

[33] Harding v Commissioner of Taxation [2018] FCA 837 [84]

[34]Commissioner of Taxation v Addy [2020] FCAFC 135 [76]

[35]Exhibit A2, Applicants response to the Commissioner's Statement of Fats Issues and Contentions

[36] Commissioner of Taxation v Pike [2020] FCAFC 158

[38] Mr Evans gave evidence the house was rented out for a 2-year period while they lived at another property.

[39] Harding v Commissioner of Taxation [2018] FCA 837 [50]

[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.

[41] Terrassin v Terrassin (1968) 14 FLR 151 [154-155]

[42] Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1 [12]; Harding [45]

[43] Quy and Commissioner of Taxation (Taxation and business) [2025] ARTA 174 [124]