Sun v Chief Commissioner of State Revenue [2025] NSWCATAD 103

NCAT Administrative and Equal Opportunity|2025-05-07

The Applicant did not hold a visa that allowed her to remain in Australia indefinitely during the land tax years in issue. The visa she held when the entered Australia was a Student (Class TU) Student Guardian (Subclass 580) visa. That visa stipulated a stay until 31 December 2017. The visa issued to the Applicant on 17 December 2017 stipulated an "Initial Stay Date" of 18 March 2022. The visa she received on 27 September 2023 stipulated an indefinite length of stay. The visas she held before 27 September 2023 were not "permanent visas" within the meaning of the Migration Act. Both had stipulated end dates and did not provide for an indefinite stay. At no time before 27 September 2023 did the Applicant hold any class of permanent visa within the meaning of s 30 of the Migration Act.
In these circumstances, the Applicant was not a "permanent resident" within the meaning of s 5B during the land tax years in issue. The consequence is that that she does not satisfy all of the requirements set out in s 5B she must satisfy in order to claim exemption from surcharge land tax.

The Applicant had submitted that the value on which land tax had been assessed was excessive. However, at the hearing, the Applicant did not pursue any challenge to the assessment in issue on the basis of excessive land value.

The Applicant is aggrieved by the assessment under review. She says that in 2016 her husband and her were invited, encouraged and sponsored by the NSW government to live and work in Australia permanently by applying for a permanent visa. The Applicant says that this required first applying for provisional visas but a permanent visa did not issue until 2023. The Applicant claims that preventing her from claiming exemption from surcharge land tax, in these circumstances, is "grossly unfair and should be set aside".
Questions of fairness of the outcomes under a taxation law were considered by the High Court in Commissioner of Taxation v Ryan (2001) 201 CLR 109. The High Court said:

"But the question for decision is what are the circumstances in which an amended assessment may lawfully be issued? That question is not answered by asserting the existence of any "policy" or "general intention" unless that policy or intention is to be found reflected in the provisions of the Act. Appeals to general notions of "fairness" or "justice" do no more than attempt to mask the absence of any foundation in the legislation for the conclusion which is asserted."

The Tribunal has applied this principle in numerous cases, confirming that there is no discretion to relieve a taxpayer of a tax liability on grounds of unfairness.
The Tribunal hears the Applicant on what she says about fairness. However, in the absence of jurisdiction to allow her relief, the Tribunal confirms the assessment under review.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Decisions Review Act 1997

Administrative Tribunal Act 2013

Tax Management Act 1956

Administration Act 1996

Acquisitions and Takeover Act 1975

Section 5B alone does not determine whether or not exemption applies. It contemplates exemption "because the land is the principal place of residence of the person". In other words, it operates on the basis that the land in question already is subject to exemption because the land is the principal place of residence of the person. However, the LTA does not itself explain what a "principal place of residence" is and when the exemption it refers to applies.
The LTA is to be read and construed with the LTMA (s 1 of the LTA). The LTMA defines what is a "principal place of residence" in s 3. It goes on in s 10(1)(r) to allow exemption under the principal place of residence exemption, as provided for by Schedule 1A. In these circumstances, the exemption referred to in s 5B can only be the exemption available under s 10(1)(r) of the LTMA.
What follows is that to obtain exemption from surcharge land tax under s 5B, the taxpayer must fall within the terms of the exemption allowed under s 10(1)(r) but also satisfy the further requirements set out in s 5B. In other words, s 5B itself operates on the basis that exemption for principal place of residence is already available under the LTMA but adding further requirements a taxpayer needs to satisfy to obtain exemption from surcharge land tax. Section 5B does not refer to s 5A(4)(g) or in its express terms depend on that provision for its own operation. Section 5A(4)(g), on the other hand, is expressed to apply "only if" if a person is eligible for the exemption under s 5B.
There was no dispute that the Applicant satisfied the requirements of the exemption under s 10(1)(r). There was also no dispute that she satisfied the requirements of s 5B, except for the requirement set out in s 5B(1)(a) that she be a "permanent resident". The Applicant said that she satisfied this requirement. The Respondent says that she did not. Whether or not the Applicant was a "permanent resident" within the meaning of s 5B is the remaining question for determination.
The expression "permanent resident" is not defined in the LTA. In Azam Mohammed & Sarah Azam v Chief Commissioner of State Revenue [2023] NSWCATAD 38, Bishop SM considered whether the definition of "permanent resident" in the Duties Act 1997 (NSW) ("Duties Act") applied to s 5B. She considered that it did. She said, at [14] and [55]:

Higgins SM in Leah v Chief Commissioner of State Revenue [2025] NSWCATAD 57 agreed that the phrase "permanent resident" as used in s 5B of the LTA should be construed as having the same meaning as used in the Duties Act. She followed the reasoning of Bishop SM (at, [44]).
The Applicant on the other hand said that the schemes under the Duties Act and that under the LTA were different schemes. The Applicant said that the LTA did not incorporate the meaning of "permanent resident" found in the Duties Act. The Applicant's submission was that the term "permanent resident" as used in s 5B instead took its ordinary meaning. She also provided evidence that she said showed that she was a "permanent resident" in the ordinary meaning.
I am in agreement with the Respondent's submission that the definition of "permanent resident" in the LTA is that referred to in the Duties Act. I adopt the reasoning of Bishop SM in Azam Mohammed as set out above, also followed by Higgins SM in Leah.
The expression "permanent resident" is defined in the Dictionary to the Duties Act relevantly to include the holder of a permanent visa within the meaning of s 30 of the Migration Act 1958 (Cth) ("Migration Act").
Section 30 of the provides:

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