FEDERAL COURT OF AUSTRALIA

Quy v Commissioner of Taxation [2026] FCA 1316

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant pay the respondent’s costs, to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HORAN J:

1    Between 2015 and 2021, the applicant lived and worked in Dubai in the United Arab Emirates (UAE), having been deployed there by his Australian employer on an international assignment. The assessment to income tax of the applicant’s gross earnings from his work in Dubai turned on whether he was an Australian resident for the purposes of s 6-5 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997), which depends on whether he was a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) in each of the relevant income years ended 30 June 2016 to 30 June 2020 (the Relevant Years).

2    The assessable income of an Australian resident includes the ordinary income that he or she derives directly or indirectly from all sources, whether in or out of Australia, during the income year: ITAA 1997, s 6-5(2). A foreign resident is generally assessed on ordinary income derived from Australian sources: ITAA 1997, s 6-5(3).

3    In addition to a person who resides in Australia according to the “ordinary concepts” of residence, s 6(1) of the ITAA 1936 relevantly defines “resident” to include a person “whose domicile is in Australia, unless the Commissioner is satisfied that the person’s permanent place of abode is outside Australia”.

4    The Administrative Review Tribunal found that the applicant did not reside in Australia according to the ordinary concepts test. However, the Tribunal was not satisfied that the applicant had a permanent place of abode outside Australia in any of the Relevant Years. In circumstances where it was not in dispute that the applicant was domiciled in Australia, the Tribunal found that the applicant was an Australian resident in each of the Relevant Years, and affirmed the assessments: Quy and Commissioner of Taxation [2025] ARTA 174 (T).

5    The applicant appeals from the Tribunal’s decision, alleging that the Tribunal erred in law when considering whether it was satisfied that the applicant’s permanent place of abode was outside Australia for the purposes of paragraph (a)(i) of the definition of “resident of Australia” in s 6(1) of the ITAA 1936.

6    For the reasons set out below, I have concluded that the Tribunal proceeded on a correct understanding of the statutory definition of “resident of Australia”, and that it was open to the Tribunal not to be satisfied that the applicant’s permanent place of abode was outside Australia. Accordingly, the appeal is dismissed.

BACKGROUND

The applicant’s circumstances

7    There was no significant dispute before the Tribunal about the applicant’s factual circumstances, which are set out in the Tribunal’s reasons at T [19]–[43].

8    The applicant was born in Vietnam in 1962, and migrated to Australia in 1978. He initially lived in Sydney, where he met and married his wife. He has three adult daughters. Both the applicant and his wife are Australian citizens.

9    The applicant had worked for CBI Constructors Pty Ltd in its engineering office since 1986. In 1998, the applicant and his family moved to Dubai, where he worked in the Dubai office of CBI or one of its related entities. In October 2009, the applicant accepted a position in CBI’s engineering office in Perth, and he and his family relocated from Dubai and purchased a home in the suburb of Beldon (the Beldon property). The applicant’s wife worked in Perth and his daughters attended school and university there.

10    In 2015, the applicant accepted a full-time permanent position with CBI as a Senior Structural Design Engineer Specialist based in Dubai. The terms and conditions of his employment were set out in an Assignment Letter dated 9 July 2015 and in Base Terms and Conditions dated 29 September 2015. Relevantly:

(a)    The applicant’s employment in this role commenced on 29 September 2015, and was to continue until the completion of his “international assignment”, which was expected to be for a period of approximately 24 months, unless extended or earlier terminated. His job title was described in the Assignment Letter as “Senior Plate Structural Engineer Specialist III”.

(b)    The applicant was employed by CBI, and was assigned to an entity within the CBI Group in Dubai, CBI Eastern Anstalt (CBIEA), for the duration of the assignment. The applicant’s “point of hire” was stated as Perth, Australia.

(c)    The applicant’s employment contract was governed by Australian law, and his remuneration package was in Australian dollars.

(d)    The applicant’s base salary was to be paid fortnightly to his nominated Australian bank account. Superannuation contributions were payable in accordance with requirements under Australian law. However, pursuant to a compulsory “Wages Protection System” under a UAE Ministerial Resolution, some amounts of salary were required to be paid in local currency into a bank account opened by the applicant in the UAE. The Assignment Letter stated that the applicant was to be reimbursed by CBI for bank transfer costs “to allow [him] to transfer money from [his] UAE Account to [his] Home Country bank account”.

(e)    The applicant received living allowances, a relocation allowance and a furnishings allowance paid into his UAE bank account.

(f)    The applicant was entitled to four weeks of annual leave for each year of service, plus travel days for a “home leave trip”.

11    The applicant travelled from Perth to Dubai on 13 September 2015. He lived in an apartment that was leased by CBIEA on a yearly basis. He purchased a four-wheel drive vehicle in Dubai, and paid for its registration and insurance. He obtained a mobile phone and arranged for a home internet connection. He held residency permits for Dubai that collectively covered the period from October 2015 to August 2021.

12    Between 2015 and 2020, the applicant returned to Australia on 12 occasions, for periods ranging from five days to 35 days. There was evidence of incoming and outgoing passenger cards completed by the applicant when he travelled between Dubai and Australia during that period. On some of those passenger cards, the applicant ticked boxes indicating that he was a “resident returning to Australia” or an “Australian resident departing temporarily”. However, on other incoming passenger cards, the applicant selected the box for “visitor or temporary entrant” and nominated the UAE as his country of residence or the place where he spent the most time abroad, and indicated that he did not intend to live in Australia for the next 12 months.

13    The applicant and his wife retained the Beldon property, where their daughters continued to live while they completed their studies. The applicant did not take furniture and household items from the Beldon property to Dubai, and left several cars and a motorcycle which continued to be registered in the applicant’s name. The applicant paid bills and outgoings for the Beldon property and registration and insurance costs for the vehicles. He retained his family private health insurance policy, and maintained his bank accounts in Australia.

14    The applicant and his wife continued to own two investment properties in New South Wales. The expenses for these properties were paid from an Australian bank account. In January 2022, the applicant purchased another property in Perth in which one of his daughters lived after moving out of the Beldon property. It may be noted that the purchase of this property was outside the period covered by the Relevant Years.

15    The applicant’s wife travelled between Australia and the UAE on multiple occasions between 2016 and 2019, but spent the majority of her time in Australia. She held UAE residency permits for Dubai covering the period from January 2016 to November 2019. The applicant’s daughters travelled to Dubai during the Christmas/New Year period in 2016/2017. The applicant’s wife remained in Australia from mid-December 2019 until March 2021, during which there were travel restrictions associated with the COVID-19 pandemic.

16    In 2021, the applicant accepted a position with CBI in Thailand, where he and his wife have since lived.

Procedural history

17    The applicant objected to notices of assessment for the income years ended 30 June 2016 to 30 June 2020 on the ground that he was not a resident of Australia for taxation purposes in each of the Relevant Years. That ground of objection was disallowed by the Commissioner.

18    The applicant applied to the Administrative Appeals Tribunal (AAT) for review of the Commissioner’s decision in respect of each of the Relevant Years. On 26 February 2024, the AAT affirmed the decisions, concluding that the applicant was a resident of Australia under both the ordinary concepts test and the domicile test, not having his permanent place of abode outside Australia: Quy and Commissioner of Taxation [2024] AATA 245; (2024) 118 ATR 265.

19    On an appeal to this Court from the AAT’s decision, Logan J held that the AAT had erroneously incorporated a reference to intention for the purposes of determining a person’s domicile (namely, the intention of remaining in a place permanently or indefinitely) when considering residence under ordinary concepts: Quy v Commissioner of Taxation (No 3) [2024] FCA 726; (2024) 120 ATR 452 at [18]–[23]. Further, his Honour concluded that the AAT had erred in its approach to the domicile test, in that it misunderstood the meaning of the word “permanent” in “permanent place of abode”: Quy (No 3) at [24]–[26]. Accordingly, the decision of the AAT was quashed, and the matter was remitted to the AAT for determination according to law.

20    From 14 October 2024, the proceeding on remittal was continued before the Tribunal: see Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Sch 16, item 24. The Tribunal received and had regard to the contentions, evidence and submissions from the previous review proceeding in the AAT: T [5]–[8].

21    On 28 February 2025, the Tribunal again affirmed the Commissioner’s decisions.

The Tribunal’s decision

22    The Tribunal found that the applicant was not a resident of Australia under the ordinary concepts test in the Relevant Years. However, as a person whose domicile was in Australia, the Tribunal was not satisfied that his “permanent place of abode” was outside Australia in any of the Relevant Years. Accordingly, the Tribunal concluded that the applicant was a resident of Australia within the meaning of s 6(1) of the ITAA 1936.

23    The Commissioner accepted before the Tribunal that the salary or wages earned by the applicant from his employment in Dubai had a foreign source, and was subject to Australian income tax only if he was an Australian resident: T [12]. The Commissioner contended that, while the applicant may have resided in Dubai in each of the Relevant Years, he was also an Australian resident in those years: T [55].

24    It was common ground that the applicant had retained his domicile in Australia: T [56]. The parties relevantly joined issue on whether the Tribunal could be satisfied that the applicant had a “permanent place of abode” in Dubai in the Relevant Years for the purposes of paragraph (a)(i) of the definition of “resident of Australia” in s 6(1) of the ITAA 1936. For such purposes, the applicant had the burden of proving that the assessments were excessive or otherwise incorrect and what the assessments should have been: Taxation Administration Act 1953 (Cth) (TAA), s 14ZZK(b)(i).

25    The Tribunal observed that the questions of whether the applicant was a resident of Australia according to ordinary concepts and whether he had a permanent place of abode outside Australia required “an analysis and weighting of factual matters”: T [59]–[60]. The Tribunal recognised that such an analysis can be “fraught with some difficulty” in cases “when the person works in one place and yet retains a house and family in another”: T [58], quoting Harding v Commissioner of Taxation [2018] FCA 837; (2018) 108 ATR 137 (Harding (first instance)) at [5] (Derrington J).

26    The Tribunal concluded that the applicant did not reside in Australia according to ordinary concepts in the Relevant Years: T [101]. That finding is not the subject of any challenge on this appeal. In reaching this conclusion, the Tribunal addressed the following matters.

(a)    The Tribunal considered the applicant’s physical presence and his intention to establish or maintain residence in a particular place and to treat it as his home. The Tribunal found that, as the applicant had spent the significant majority of his time in Dubai for his work assignment, the duration and nature of his absence from Australia tended in favour of him not being a resident under ordinary concepts: T [73]. However, the Tribunal accepted that mere physical absence from Australia was “not sufficient to negate residence in Australia”, and that it was necessary to give further consideration to “the question of continuity of association”: T [73].

(b)    In this regard, the Tribunal accepted that the applicant was more likely to have treated his return trips to Australia during the relevant period as visits or holidays, such that these visits did not indicate an intention to treat Australia as his “home”: T [72]. The Tribunal took into account the incoming and outgoing passenger cards completed by the applicant, including statements that he did not intend to live in Australia for the next 12 months: T [70]–[71]. In so far as the applicant had stated that he was a resident of Australia in some of the passenger cards, the Tribunal was not prepared to treat those statements as an admission of his status: T [71].

(c)    The Tribunal found that, on balance, the applicant’s employment arrangements were consistent with him not regarding Australia as his “home” in any of the Relevant Years: T [79]. The Tribunal had regard to his “longstanding employment history with CBI” in different locations, the terms of his employment contract, and his remuneration arrangements: T [74]–[79].

(i)    The Commissioner sought to rely on the applicant’s engagement for a fixed term of 24 months, subject to extension or earlier termination, with a “point of hire” in Perth and travel allowances for “home leave”: T [75].

(ii)    The Tribunal noted that “[a]t least some of the Applicant’s salary was paid by his Australian employer in Australian dollars into his existing Australian bank account”, although the parties differed as to the details of such payments: T [77].

(iii)    The applicant, on the other hand, emphasised that the “host entity” for his assignment was established in Dubai, which was the “host location” identified in the employment contract: T [76].

(iv)    The Tribunal found that the applicant’s employment contract was comprised in Base Terms and Conditions reflecting “the legal status of his employment by an Australian company”, and an Assignment Letter dealing with “the terms of his specific assignment in Dubai and [reflecting] legal requirements of the host country where he was located”. The Assignment Letter also provided for “various living allowances to support the Applicant in making his work location his home for the duration of his assignment”: T [79].

(d)    The Tribunal noted that the maintenance of a house and family in Australia could be significant in determining residence for taxation purposes, indicating an expectation of return and an enduring continuity of association with Australia: see Harding (first instance) at [50] (Derrington J); Harding v Commissioner of Taxation (2019) 269 FCR 311 at [24] (Davies and Steward JJ); Pike v Commissioner of Taxation (2020) 280 FCR 429 at [16] (Davies, White and Steward JJ). However, the Tribunal accepted that it was reasonable for the applicant’s daughters to have remained at the Beldon property in Perth while completing their secondary education and university studies: T [81], [87]. Further, although the applicant’s wife had spent the majority of her time in Australia during the Relevant Years, living at the Beldon property with financial support from the applicant, this did not require the conclusion that the applicant considered his “home” was in Australia: T [82]–[84], [87]. Rather, his wife’s frequent trips to Dubai “could be viewed as consistent with her visiting her husband in the place which he treated as his home for the time being”: T [87].

(e)    In relation to the applicant’s social and community activities in Perth and Dubai respectively, the Tribunal did not find the evidence of great assistance in assessing the applicant’s intention for the purposes of determining residence according to ordinary concepts, but noted that it was “of more relevance to the question of whether he established a permanent place of abode outside Australia”: T [88]. This included the applicant’s evidence that he had “severed social and personal ties in Perth” and taken up social and community activities in Dubai, such as attending a new church. On the other hand, he had “left musical instruments and other equipment relating to his hobbies” at the Beldon property, and he rode his Harley Davidson motorbike when he returned to Perth: T [88].

(f)    The applicant retained real property in Australia, including the Beldon property and two investment properties in New South Wales, and had subsequently purchased a further property in Perth in 2022 with one of his daughters: T [42], [89]. Other than a limited number of personal items, the applicant did not transport his furnishings or household goods to Dubai. He kept the Beldon property furnished for his daughters to live in and purchased new furnishings for his residence in Dubai: T [90]–[93]. While the Commissioner contended that this demonstrated a significant continuity of association with Australia, the Tribunal found:

95.     In the particular circumstances of the Applicant, his retention of a house in Perth is not inconsistent with him holding the intention to cease his residency in Australia in each of the Relevant Years. It is explicable by the need to house and otherwise provide for his daughters while they completed their education. Although each case must be determined on its particular facts, this conclusion is similar to that reached in Harding in which the taxpayer maintained a house in Australia while his child completed their schooling, and where the taxpayer stayed when he returned to Australia. In that case, having regard to the totality of evidence the Court found that the taxpayer was effectively on holidays visiting his family when he stayed there, and did not ‘reside’ at that house.

96.    … The Applicant appears to have furnished the Dubai Apartment to the extent necessary for a reasonably comfortable life in Dubai, and the furnishings were not insubstantial or temporary. Otherwise, debate over the quality of these furnishings or a comparison to the Beldon Property furnishings does not greatly assist an assessment of whether the Applicant retained an association with Australia or had the intention to treat Australia as his home in any of the Relevant Years.

(Footnote omitted. Emphasis in original.)

(g)    The Tribunal accepted that there was a reason for the applicant to maintain bank accounts in Australia, including in the context of his ongoing responsibilities to provide financial support for his daughters: T [98]. While the retention of investment properties was “a factor indicative of an ongoing association with Australia”, it was necessary for this to be “weighed against the other relevant factual matters”: T [99].

(h)    Taking into account all of these matters, the Tribunal found that “the objective evidence is consistent with the Applicant’s position that he did not have the intention to treat Australia as his ‘home’ in [the relevant] years”: T [100].

27    Having found that the applicant did not reside in Australia according to ordinary concepts during the Relevant Years, the Tribunal then turned to the “domicile” limb of the definition of “resident of Australia”. As it was not in dispute that the applicant was domiciled in Australia in the Relevant Years (T [56], [103]), he would be a resident of Australia under paragraph (a)(i) of the statutory definition unless the Tribunal was satisfied that his “permanent place of abode” was outside Australia (i.e. in Dubai or the UAE) during those years.

28    The Tribunal referred to the applicable principles identified by the Full Court in Harding. The Tribunal stated that the question was “whether the person has abandoned any residence or place of abode they may have had in Australia”: T [105]. The word “permanent” did not require the person to have formed an intention to live or reside outside Australia “indefinitely” without any intention of returning to Australia, but was in contrast to a “temporary” or “transitory” place of abode outside Australia: ibid.

29    The Tribunal canvassed many of the factors that it had taken into account when addressing residence according to ordinary concepts, and acknowledged that its findings of fact in that context were also relevant to the “domicile” test, although “rather than focussing on the degree of connection between the Applicant and Australia, the question here is whether the Applicant had established a permanent place of abode outside Australia”: T [109].

30    The applicant said that he had abandoned his residence in Australia and adopted a permanent place of abode in Dubai during the Relevant Years, having taken up a full-time job in Dubai, moved his personal belongings overseas and severed his social ties in Australia: T [106]. The Commissioner, on the other hand, contended that the applicant had not acted “in a manner consistent with an individual intending to quit Australia and set up a permanent place of abode elsewhere”, relying on the nature and purpose of his presence in Dubai and his ongoing association with Australia, including his family, investment and financial arrangements: T [107].

31    The Tribunal found that the evidence relating to the applicant’s accommodation and social arrangements in Dubai was equivocal and “would not provide a sufficient basis for being satisfied that the Applicant had established a place of abode in Dubai that was more than temporary or transitory”: T [116]. The residency permits held by the applicant, each of which were issued for a period of 24 months, were “not particularly helpful as an objective indicator of the Applicant’s intention”: T [110]. The applicant’s Dubai apartment was leased in the name of his employer or the “host entity” in Dubai: T [111]. The apartment was furnished “with what was needed for a comfortable existence during his time in Dubai”: T [112]. While the applicant took personal belongings with him when he moved from Perth to Dubai, those items were “consistent with what might be required for living in Dubai on a longer term, but not necessarily permanent, basis”: T [113]. The Tribunal accepted that it was likely that the applicant had engaged in social and recreational activities in Dubai, including attending church: T [114]. In the absence of corroborative evidence from the applicant’s wife, the Tribunal did not give significant weight to his statements about participating in social and community activities with his wife in Dubai: T [115].

32    The Tribunal did not accept that the applicant intended to abandon residence in Australia during the Relevant Years, and found (at T [117]):

Despite not treating Australia as his home in the Relevant Years, the Applicant maintained connections with Australia that are objectively inconsistent with his ‘abandoning’ residence in Australia and making Dubai a ‘permanent’ (in the sense of not temporary) home. Only some of these connections may be explained as necessary for the support of his dependent daughters.

33    The Tribunal noted that the maintenance of a family home in Australia, and “frequent returns” to the Australian home and the family based there, could suggest an ongoing association with or connection to Australia: T [118]. The Tribunal referred to the applicant’s retention of motor vehicles in Australia, including for “sentimental reasons” and for his use when in Australia, and the maintenance of his driver’s licence and motor vehicle registrations in Western Australia: T [119]. The Tribunal contrasted this with the applicant’s disposal of the vehicle he purchased in Dubai when he moved to Thailand: ibid. Further, the applicant had left personal belongings at the Beldon property, including musical instruments and winter clothing: T [120]. The applicant had retained and operated bank accounts in Australia: T [122]. His employment contract provided for salary and wages to be paid into his Australian bank accounts, and superannuation contributions were paid in accordance with Australian legislation and remained in Australia for his benefit: ibid. The Tribunal did not attach any significance to the fact that the applicant had kept his family’s private health insurance policy in Australia: T [121].

34    The Tribunal stated:

123.    Although the Applicant’s explanation for these arrangements may have been consistent with an intention that he not live in Australia as his ‘home’ in any of the Relevant Years for the purposes of the ordinary concepts test, they take on a slightly different complexion in the context of assessing whether he had definitely ‘abandoned’ residence in Australia for the purposes of the domicile test.

124.    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 (rather than on a temporary basis, even if not indefinitely). Having regard to all of the facts, the Tribunal cannot be satisfied that the Applicant had a ‘permanent place of abode’ outside Australia in any of the Relevant Years.

125.    Each case must turn on its own facts and circumstances, and matters which carry significant weight towards a particular conclusion in one case may not do so where there are countervailing factors. Both the Respondent and Applicant referred to aspects of the decisions in Harding in support of their respective submissions, and there is some similarity between the circumstances of Mr Harding and those of the Applicant. The conclusion reached by the Tribunal in this proceeding differs to the outcome in Harding. As a general observation, the Federal Court’s description of Mr Harding’s circumstances indicated a strong commitment on his part to settling in Bahrain permanently for the lifestyle offered in the Middle East as well as for professional reasons, and this was regardless of personal or family connections in Australia. There was an ‘unchallenged finding of fact’ relating to Mr Harding’s intention when leaving Australia. That is not the case with the Applicant who has moved to various locations, within and outside Australia, following different work assignments with his long-term employer.

(Footnote omitted.)

35    Accordingly, the Tribunal was not satisfied that the applicant’s permanent place of abode was outside Australia in any of the Relevant Years, and concluded that he was a resident of Australia for the purposes of the ITAA 1936 (and therefore an Australian resident for the purposes of s 6-5(2) of the ITAA 1997).

NOTICE OF APPEAL

36    The applicant’s notice of appeal sets out three questions of law, each of which is directed to an alleged legal error by the Tribunal in reaching the conclusion that it was not satisfied that the applicant had a permanent place of abode outside Australia in any of the Relevant Years.

37    The first question is concerned with whether the Tribunal failed to apply the correct test, namely, whether the applicant lived, and intended to live, in Dubai “on an other than temporary or transitory (but not indefinite) basis”. The applicant contends that the correct test did not require the applicant to have abandoned Australia, nor to have abandoned Australian residence permanently or indefinitely. Further, the applicant contends that the Tribunal applied a test that involved matters that were “not relevant to or inconsistent with” the correct test, namely whether the applicant had “maintained connections with Australia”: see T [117]–[125].

38    The second question is concerned with whether legal error should be inferred on the basis that the Tribunal was not relevantly satisfied that the applicant’s permanent place of abode was outside Australia by reference to various specified “Adverse Findings”, and notwithstanding various specified “Favourable Findings”.

(a)    The so-called “Adverse Findings” were that, during the relevant period, the applicant:

(i)     retained ownership and registration of motor vehicles in Australia;

(ii)     retained an Australian drivers license;

(iii)     in fact drove a motor vehicle that he owned in Australia during the abovementioned trips to Australia;

(iv)     retained other personal belongings including winter clothes and two guitars in Australia;

(v)     retained bank accounts, investment properties, and superannuation funds in Australia; and

(vi)     was a person who had moved to various locations within and outside Australia following different work assignments with his long-term employer …

(b)    The so-called “Favourable Findings” were that:

(i)     the applicant did not reside in Australia during the relevant period (at [100]-[101]);

(ii)     the applicant ceased his former social and community activities in Australia during the relevant period (at [100]);

(iii)     in the period between November 2015 and January 2021, the applicant only returned to Australia on 12 occasions for short trips, typically of two to three weeks’ duration, and never longer than 35 days, that were properly characterised as visits to family or holidays (at [38], [68], [72] and [100]);

(iv)     save for an initial period of a few weeks when he stayed at a hotel, the applicant lived in the same apartment in Dubai from November 2015 to early 2021 (at [34] and [111]);

(v)     the apartment was furnished with not insubstantial furniture which was what was needed for a comfortable existence in Dubai (at [112]);

(vi)     the applicant took with him to Dubai key personal belongings which were consistent with what might be required for living in Dubai on a longer term basis (at [113]);

(vii)     the applicant was working a full-time permanent job in Dubai during the relevant period with an employer with whom he had a longstanding employment history (at [29], [68] and [74]);

(viii)     the applicant engaged in social and recreational activities in Dubai in each year of the relevant period (at [114]) …

39    The third question is whether, having made the Favourable Findings, the only conclusion legally open to the Tribunal was to be satisfied that the applicant’s permanent place of abode was outside Australia in each of the Relevant Years. As well as itself being directed to an alleged legal error, the third question is also relevant to the relief that should be given if the appeal is allowed on either of the first two questions, in particular whether in such circumstances the matter should not be remitted to the Tribunal for redetermination.

40    Each of the questions of law is accompanied by a corresponding ground of appeal.

41    The first ground alleges that the Tribunal erred by not applying the correct test in finding that it was not satisfied that the applicant had a permanent place of abode outside Australia in the Relevant Years. In particular, the applicant challenges the findings made by the Tribunal in the passage at T [123]–[125] (extracted at paragraph 34 above).

(a)    The applicant contends that a person who does not live or intend to live in Australia as their “home” for a period of time that is not temporary or transitory, even if not indefinite, has “abandoned” Australian residence in the relevant sense. The applicant contends that the “arrangements” relied on by the Tribunal could only bear upon identifying where the applicant lived or intended to live on a basis that was other than temporary or transitory (but not indefinite) during the relevant period, and did not take on a materially “different complexion” in the context of deciding whether the applicant’s permanent place of abode was outside Australia.

(b)    The applicant contends that a person who “can demonstrate that they were living, working and socialising in another place … for an extended period of time” (in this case, in Dubai for 5 years) has demonstrated that they have a permanent place of abode outside Australia and, to the extent necessary, that they have abandoned Australian residence.

(c)    The applicant contends that his history of past long-term work-related moves to various locations within and outside Australia tended in favour of, rather than against, his permanent place of abode being outside Australia.

42    The second ground alleges that it should be inferred that the Tribunal failed to exercise its function according to law, on the basis that the Tribunal made the Favourable Findings but nevertheless concluded by reference to the Adverse Findings that it was not satisfied that the applicant’s permanent place of abode was outside Australia.

43    The third ground alleges that the only conclusion legally open to the Tribunal, having made the Favourable Findings, was to be satisfied that the applicant’s permanent place of abode was outside Australia.

CONSIDERATION

Applicable legislation

44    Income tax is payable by individuals and companies for each financial year by reference to their taxable income: ITAA 1997, ss 4-1, 4-10. Taxable income is generally worked out by subtracting deductions from assessable income: ITAA 1997, s 4-15.

45    Assessable income includes “ordinary income”, that is, income according to ordinary concepts: ITAA 1997, s 6-5(1). For such purposes, s 6-5(2) and (3) draw a distinction between Australian residents and foreign residents:

(2)    If you are an Australian resident, your assessable income includes the *ordinary income you *derived directly or indirectly from all sources, whether in or out of Australia, during the income year.

(3)    If you are a foreign resident, your assessable income includes:

(a)    the *ordinary income you *derived directly or indirectly from all *Australian sources during the income year; and

(b)    other *ordinary income that a provision includes in your assessable income for the income year on some basis other than having an *Australian source.

46    Under the Dictionary in s 995-1 of the ITAA 1997, “Australian resident” means a person who is a resident of Australia for the purposes of the ITAA 1936. Conversely, “foreign resident” means a person who is not resident of Australia for the purposes of the ITAA 1936.

47    Section 6(1) of the ITAA 1936 relevantly defines “resident of Australia” to include:

(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;

…

The other limbs of the definition are not relevant for the purposes of the present appeal: see T [15]–[16], [47].

The scope of the appeal

48    Under s 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), an appeal may be brought from a decision of the Tribunal “on a question of law”. The question or questions of law form the subject matter of the appeal, and confine its ambit: Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [62(1)], [85] (the Court). However, such an appeal is not limited to “pure” questions of law, and can encompass at least some “mixed questions of fact and law”: Haritos at [62(8)], [192]–[194]. Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form: Haritos at [62(6)], [94], [107] (the Court).

49    An appeal under s 172 of the ART Act is not confined to jurisdictional error, and extends to non-jurisdictional errors of law: Haritos at [62(7)]; Allan v Transurban City Link Ltd (2001) 208 CLR 167 at [11] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). Some legal errors might require consideration and analysis of the evidence before the Tribunal, and findings of fact made by the Tribunal might be vitiated by errors of law. Nevertheless, this does not permit the Court on an appeal under s 172 of the ART Act to “usurp the fact-finding function” of the Tribunal: Haritos at [136], [192], [194], referring to Repatriation Commission v O’Brien (1985) 155 CLR 422 at 430 (Gibbs CJ, Wilson and Dawson JJ); Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320 at [19] (French CJ, Gummow and Bell JJ).

50    As the Full Court stated in Haritos at [192], “the right of appeal does not extend to mere questions of fact”. The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with by the Tribunal and not by this Court: Haritos at [133], [194], referring to Repatriation Commission v Owens (1996) 70 ALJR 904. In particular, while the Court can evaluate the Tribunal’s fact-finding process to determine its legality, it “should be cautious before embarking on its own analysis of the evidence where the task of assessing facts has been placed by the legislature in the hands of specialist bodies such as the Tribunal … which are equipped to deal with them”: Brown v Repatriation Commission (1985) 7 FCR 302 at 304 (Bowen CJ, Fisher and Lockhart JJ); Haritos at [85], [194]. As Brennan J said in Waterford v The Commonwealth (1987) 163 CLR 54 at 77, “[t]here is no error of law simply in making a wrong finding of fact”. Rather:

The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make.

51    These principles are particularly important in cases where, having correctly identified the principles of law, the question for determination by the Tribunal in applying those principles was “a matter of fact and degree”: see, e.g., Federal Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365–366 (Forster, Fisher and Spender JJ). In Haritos (at [195]), the Full Court endorsed the observations made by Hill J in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 16:

[W]here the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree.

52    In other words, where different conclusions are reasonably open as to whether particular facts come within a statutory word or phrase used in its ordinary sense or meaning, that question will be one of fact: Sharp Corporation at 12 (Davies and Beazley JJ); Hope v Bathurst City Council (1980) 144 CLR 1 at 7–9 (Mason J); Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 (Mason JA); Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]–[27] (Gleeson CJ, Gummow and Callinan JJ). The Tribunal’s decision may nevertheless raise a question of law if its determination is affected by legal error, including on the “usual grounds” of judicial review: Sharp Corporation at 12 (Davies and Beazley JJ). In particular, as Hill J stated in Sharp Corporation at 16, whether the facts as found or agreed “necessarily fall within the description of a word or phrase in a statute” (emphasis in original), or necessarily fall outside that description, will be a question of law, so that:

If only one meaning is open but a tribunal arrives at a different meaning, underlying the Tribunal’s conclusion must be an error of principle, that is to say, an error of law.

See also Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138 (Jordan CJ).

53    In so far as paragraph (a)(i) of the definition of “resident of Australia” is expressly conditioned on the satisfaction of the Commissioner (or the Tribunal), the decision is liable to review in accordance with the principles identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; see also Harding at [18], [20], [22] (Davies and Steward JJ). The Commissioner (or the Tribunal) must address the correct question, correctly apply the law, take into account all relevant considerations, and not take into account any irrelevant considerations. Where no reasons are given, it may be possible to infer such errors if the result cannot otherwise be explained on a proper consideration of the material that was before the Commissioner (or the Tribunal). This is less pertinent where, as here, the Tribunal has given detailed written reasons for its decision. Nevertheless, there may still be an error of law if the conclusion reached was not open on the material before the Tribunal.

54    With those principles in mind, it is necessary to address the alleged questions of law and grounds of appeal relied on by the applicant in the present case.

The first question

55    The definition of “resident of Australia” in s 6 of the ITAA 1936 extends beyond persons who reside in Australia according to ordinary concepts, by specifically including the persons referred to in paragraph (a).

56    Relevantly to the present appeal, paragraph (a)(i) of the definition includes persons whose domicile is in Australia, unless their permanent place of abode is outside Australia. The implicit premise is that a person can have a permanent place of abode outside Australia but still have an Australian domicile. This may involve a potential “tension” between the concept of domicile and the concept of a “permanent place of abode”: see, e.g., Harding at [29]–[30] (Davies and Steward JJ). Nevertheless, it is possible for a person to have a permanent place of abode in another country in respect of a particular income year, without establishing an intention to make his or her home indefinitely in that country so as to change his or her domicile: cf. Domicile Act 1982 (Cth), s 10; see also Harding at [36], [38] (Davies and Steward JJ).

57    Paragraph (a)(ii) is directed at persons who are physically present in Australia during more than one-half of the income year (often referred to as the “183-day test”), unless their usual place of abode is outside Australia and they do not intend to take up residence in Australia. The reference to a person’s usual place of abode suggests a broader concept than a “permanent” place of abode within the meaning of paragraph (a)(i). A usual place of abode is perhaps more commonly associated with the place in which or at which a person lives for the purposes of determining residence according to ordinary concepts: see e.g. Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99–100 (Latham CJ), referring to Levene v Inland Revenue Commissioners [1928] AC 217 at 222 (Viscount Cave LC); cf. Harding at [32] (Davies and Steward JJ). The exception to paragraph (a)(ii) of the definition is concerned with persons who, although physically present in Australia for most of a given year of income, would not be considered to be resident in Australia because they were “only a temporary visitor of this country for a period of time” (even extending to years): Harding at [39] (Davies and Steward JJ).

58    While paragraph (a) of the definition of “resident of Australia” does not strictly operate as a deeming provision, as Northrop J observed in Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1 at 12:

… the extended meaning of “resident” becomes relevant only when, during the year of income under consideration, the taxpayer does not reside in Australia. Paragraphs (a)(i) and (ii) of the definition are complementary provisions enlarging the group of persons who do not reside in Australia but become liable to pay income tax in Australia.

59    The arguments before the Tribunal and the submissions on the present appeal relied heavily on the decisions in Applegate and Harding, in each of which paragraph (a)(i) of the definition of “resident of Australia” arose for consideration.

60    In Applegate, a solicitor moved with his wife from Sydney to the New Hebrides (now known as Vanuatu) in order to open and manage a branch office on behalf of the law firm of which he was an associate partner. His intention was to remain in Vila for an indefinite period to operate the branch office, but he did not intend to stay there forever and never return to Australia. The solicitor gave up the tenancy of his residential premises in Sydney, and left no assets in Australia. After his arrival in Vila, he entered into an annual lease of a house in which he and his wife lived, and obtained residency permits. He travelled to Australia for brief visits on vacation or for family reasons. Within around two years (and after the income tax year in question), the solicitor became ill and returned with his family to Sydney. In the financial year during which he had moved overseas, the solicitor was assessed to tax on income derived from sources outside Australia on the basis that he was a resident of Australia.

61    The Full Court in Applegate upheld the decision of the Supreme Court of New South Wales, on appeal from the Taxation Board of Review, that the taxpayer was not a resident of Australia for the relevant part of the income tax year. The Full Court unanimously rejected a submission made by the Commissioner that, in order to establish a permanent place of abode outside Australia, it was necessary to demonstrate an intention to live in a place outside Australia indefinitely, without any definite intention of returning to Australia in the foreseeable future, other than at some remote point in time: Applegate at 5 (Franki J), 11 (Northrop J), 15, 17 (Fisher J). Accordingly, the fact that the taxpayer anticipated and intended that he would ultimately return to Australia did not preclude a finding that he had a permanent place of abode outside Australia in the relevant tax year.

62    It was accepted in Applegate that the word “permanent” can have many “shades of meanings”, and that its meaning in this particular context was affected by the fact that income tax is assessed annually and that “[e]ach year of income must be looked at separately”: Applegate at 12 (Northrop J); see also at 3, 4 (Franki J), 16 (Fisher J). Further, the question whether a person has a permanent place of abode outside Australia was not concerned with whether the person had acquired a new domicile of choice, and therefore required something less than an intention to live and make their home permanently or indefinitely in another place: Applegate at 4 (Franki J), 11 (Northrop J), 16–17 (Fisher J). Although the person’s subjective intention was relevant, the inquiry was an objective one: Applegate at 5 (Franki J), 15, 17 (Fisher J).

63    In Applegate, Northrop J relevantly stated (at 12):

What is of importance is whether the taxpayer has abandoned any residence or place of abode he may have had in Australia. Each year of income must be looked at separately. If in that year a taxpayer does not reside in Australia in the sense in which that word has been interpreted, but has formed the intention to, and in fact has, resided outside Australia, then truly it can be said that his permanent place of abode is outside Australia during that year of income. This is to be contrasted with a temporary or transitory place of abode outside Australia.

64    Similarly, Fisher J considered (at 17) that it was necessary to have regard to “the nature and quality of the use which a taxpayer makes of a particular place of abode”. It is necessary to read these observations with the caveat that, as subsequently established in Harding, it is not essential for the taxpayer to live permanently in a specific dwelling: see Harding at [43] (Davies and Steward JJ). Nevertheless, Fisher J continued (at 17):

It is to my mind perfectly consistent with the establishing of a home in a particular place that the taxpayer is aware that the duration of his enjoyment of the home, although indefinite in length, will be only for a limited period. The knowledge that eventually he will return to the country of his domicile does not in my opinion deny him a capacity to make his home outside of his country [of] domicile. Such a conclusion is particularly open in the present circumstances where the taxpayer was not a completely free agent in the choice of when to return, it being a matter for negotiation between him and his employers.

To my mind the proper construction to place upon the phrase “permanent place of abode” is that it is the taxpayer’s fixed and habitual place of abode. It is his home, but not his permanent home. It connotes a more enduring relationship with the particular place of abode than that of a person who is ordinarily resident there or who has there his usual place of abode. Material factors for consideration will be the continuity or otherwise of the taxpayer’s presence, the duration of his presence and the durability of his association with the particular place.

65    In Harding, the taxpayer accepted work in the Middle East and moved to live in Bahrain while his wife and children remained in Australia. The taxpayer intended to leave Australia permanently, with no intention to return. While he expected that his wife and youngest child would join him in Bahrain within a few years, he intended to live permanently overseas regardless of what his family did. He took his clothes and personal belongings with him to Bahrain, and sold most of his significant personal possessions in Australia. He retained joint ownership of a house in Australia for the use of his wife and children until they were able to join him in Bahrain. In the relevant income year, the taxpayer was living in a series of furnished apartments that served as temporary accommodation until he acquired a house for his family to live in. While the primary judge held that the taxpayer did not reside in Australia according to ordinary concepts, he concluded that the taxpayer was a resident of Australia under paragraph (a)(i) of the statutory definition. The Full Court (Logan, Davies and Steward JJ) overturned that conclusion, holding that the taxpayer’s permanent place of abode was outside Australia, and accordingly he was not a resident of Australia. It may be noted in passing that, by agreement between the parties, the appeal was conducted on the basis that this was an issue to be resolved by the Court itself, rather than by reviewing the Commissioner’s state of satisfaction: Harding at [21]–[22].

66    The main point of disagreement between the Full Court and the primary judge in Harding was on the question whether a “permanent place of abode” in paragraph (a)(i) of the statutory definition referred to a specific dwelling, as opposed to a geographic location. The Full Court held that the exception to the “domicile test” in paragraph (a)(i) was concerned with “whether a person had commenced to live permanently outside of Australia”, having “abandoned in a permanent way their Australian residence”: Harding at [40], [49] (Davies and Steward JJ). As a consequence, a “place of abode” could include a reference to a town or a country, even if the person lived in multiple houses or apartments within that place: Harding at [26], [40]. It may be noted that Davies and Steward JJ would have drawn the line at living within a particular country, as opposed to moving between foreign countries. As their Honours stated (at [40]):

So long as the taxpayer has “definitely abandoned” his or her residence in Australia, it does not serve the function or purpose of the exception to subpara (i) to require that the taxpayer be permanently located at a particular house or flat in a particular town within a foreign country. Nor, indeed, does it serve the functional purpose of the exception to require the person to live in one particular town, suburb or village within a given country.

67    In reaching this conclusion, Davies and Steward JJ (at [45]) agreed with the reasons of Northrop J in Applegate, including the observation that “[w]hat is of importance is whether the taxpayer has abandoned any residence or place of abode he may have had in Australia”. The concept of “abandonment” of residence in Australia was echoed in the extrinsic materials to the amending legislation that introduced the statutory definition: Harding at [33]–[35]. This led Davies and Steward JJ to state (at [36]) in relation to paragraph (a)(i) of the definition:

Where it can be shown to the Commissioner’s satisfaction that that person has “definitely abandoned” their Australian residence, Parliament’s intention is that that person should not be subject to federal income tax. A person who ceases permanently to live in Australia, but who nonetheless considers themselves still to be an Australian might fall within this category. Such a person may not have an “intention to make his or her home indefinitely” in another country for the purposes of s 10 of the Domicile Act. That may be because, for example, there is no new country to whom that person now wishes to pledge allegiance; or it may be because, whilst physically living in a foreign country with no plan to return to Australia, there has not been a conscious relinquishment of Australian identity.

68    While the concept of “abandonment” (or “definite abandonment”) of Australian residence was raised by Davies and Steward JJ in the context of whether a person’s permanent place of abode is outside Australia, that concept is not drawn directly from the statutory language and is perhaps best regarded as an elucidation of the requisite element of permanence for the purposes of the “carve out” to paragraph (a)(i) of the definition of “resident of Australia”, with reference to the mischief identified in the extrinsic materials. It is nevertheless evident that their Honours regarded the element of permanence as extending to the cessation of residence in Australia as well as the establishment of a place of abode outside Australia. In both respects, however, what is contemplated by “permanent” in this context must be understood in the light of Applegate, that is, not necessarily forever or for an indefinite period without any intention of ever returning to Australia.

69    There may be some force in the comments made by Fisher J in Applegate (at 16) in relation to the difficulty that can arise in the application of the extended definition of “resident of Australia”, which is “made doubly difficult by the indiscriminate use of the differing concepts of domicile, residence, permanent place of abode and usual place of abode”. In order for a person to have a “permanent place of abode” outside Australia, it is necessary to demonstrate more than that he or she no longer resides in Australia (within ordinary concepts), and more than residence in another place, at least on a “temporary or transitory” basis. On the other hand, it is not necessary to establish that the person intends to make his or her home permanently or indefinitely in another country, so as to acquire a domicile in that country. In the context of the law of domicile, the retention of ties with a country does not preclude the acquisition of a domicile of choice in another country, although it may be relevant to that question: Hyland v Hyland (1971) 18 FLR 461 at 466 (Asprey JA).

70    On the present appeal, the applicant submitted that the Tribunal failed to address the correct question or misunderstood the meaning of whether he had a “permanent place of abode” outside Australia during the Relevant Years. The applicant contended that the Tribunal placed undue weight on whether he had “definitely abandoned” residence in Australia, and that it incorrectly distinguished Harding on the basis that a finding was made in that case that the taxpayer had an intention to leave Australia permanently. In so far as the applicant had moved to various locations for different work assignments with his employer, he contended that each of those moves was for a period of years and was “plainly ‘permanent’ in the sense referred to in Applegate and endorsed in Harding”.

71    The applicant submitted that the Tribunal had adopted an erroneous approach which required the demonstration of an intention to leave Australia permanently or indefinitely. Noting that the Tribunal did not find that his residence in Dubai was temporary or transitory in nature, the applicant submitted:

If a person lives (and works and socialises) in a single geographical area outside Australia in an income year, in a way that is not temporary or transitory, and does not live or intend to live in Australia, then their permanent place of abode is outside Australia for that year.

In so far as the Tribunal suggested that something more was required (e.g. by stating that the question “goes beyond whether [the person] can demonstrate that they were living, working and socialising in another place, even for an extended period of time”), the applicant argued that the Tribunal misunderstood the test for a permanent place of abode outside Australia, and focused on the “retention of connections with Australia” rather than an identification of where the person lives on more than a temporary or transitory basis.

72    In essence, the applicant argued that “living, working and socialising” in another place was sufficient to establish a place of abode, and doing so for “an extended period of time” was sufficient to indicate that such a place of abode was not temporary or transitory. The applicant submitted that nothing more was required in order to establish that his permanent place of abode was outside Australia (and, in so far as it was relevant, that he had abandoned residence in Australia).

73    The applicant did not point to any error in the Tribunal’s summary of the principles governing whether a person’s permanent place of abode is outside Australia (see T [105]), although counsel for the applicant expressed a caveat in relation to what the Tribunal might have understood by the “abandonment” of any residence in Australia. In particular, the Tribunal recognised that the term “permanent” does not require the person to have formed an intention to live outside Australia indefinitely, without any intention of ever returning to Australia. The Tribunal also understood that “permanent” was to be contrasted with a “temporary” or “transitory” place of abode outside Australia, and that a place of abode can include a town or country and is not limited to a specific dwelling: ibid. In identifying the question whether the person has abandoned any residence or place of abode in Australia, the Tribunal acknowledged that this contemplates the abandonment of residence in Australia (as opposed to the abandonment of Australia), and noted that the exception in paragraph (a)(i) of the definition assumes that the person is still domiciled in Australia, albeit not physically present during the relevant income year.

74    As the Tribunal recognised, the question whether the applicant had a permanent place of abode in the Relevant Years required “an analysis and weighting of factual matters”: T [59]–[60], [125]. Further, in this regard, the applicant carried the burden of satisfying the Tribunal that his permanent place of abode was in Dubai: T [57], [59]; TAA, s 14ZZK(b)(i).

75    While it may be possible to draw points of comparison or contrast with various factors arising in Applegate and Harding, it must be kept in mind that each case turns on its facts and, as Logan J observed in Harding (at [8]), “it is of cardinal importance not to elevate into matters of principle in a later case particular facts found decisive in the different circumstances of an earlier case”. Further, the decisions in Applegate and Harding each turned on a distinct issue. In Applegate, the principal point involved the rejection of the contention that, in order to have a permanent place of abode outside Australia, it was necessary to demonstrate an intention to live overseas indefinitely, without any definite intention to return at any point in the foreseeable future. The central issue in Harding concerned whether or not it was necessary for the taxpayer to be permanently located at a particular house or flat in a particular town within a foreign country.

76    In addition, each of Applegate and Harding appears to have been argued by the parties on the basis that the determinative question was whether the taxpayer had a permanent place of abode outside of Australia in the relevant income year, rather than whether the Commissioner had erred in law in failing to reach the requisite state of satisfaction that the taxpayer had such a permanent place of abode: see Harding at [20]–[22] (Davies and Steward JJ). There was no analogous agreement reached between the parties to the present appeal. On the contrary, the Commissioner submitted that the question to be determined on the appeal was “whether the Tribunal formed the requisite state of mind void of vitiating error of the type identified in Avon Downs”, referring in that regard to cases such as Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 45 (Barwick CJ), 51–53 (Menzies J), 56–57 (Windeyer J), 59, 62 (Owen J); Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535 at 541–542, 548–549 (Barwick CJ), 561, 567–568 (Gibbs J), 575–577 (Stephen J); Federal Commissioner of Taxation v Addy (2020) 280 FCR 46 at [134]–[136], [167] (Derrington J), [292]–[294] (Steward J); and South Seas Holdings Pty Ltd (Trustee) v Federal Commissioner of Taxation [2025] FCA 848; (2025) 123 ATR 437 at [672]–[687] (Colvin J). That line of authority is principally concerned with the jurisdiction and powers of this Court on an appeal against an objection decision under Pt IVC of the TAA (or equivalent legislation), as opposed to an appeal from the Tribunal on a question of law under s 172 of the ART Act. Nevertheless, the scope of an appeal on a question of law is no wider in this respect than the jurisdiction conferred under Pt IVC of the TAA.

77    In any event, the present appeal was conducted on the basis that it was necessary for the applicant to demonstrate an error of law that vitiated the Tribunal’s dissatisfaction that he had a permanent place of abode outside Australia. Thus, the question arising on the appeal is not whether this Court can or should itself be satisfied that the applicant had a permanent place of abode outside Australia in the Relevant Years. Further, in the event that any such error of law could be established, it was accepted by the parties that the matter would need to be remitted to the Tribunal for redetermination, unless it could be said that only one conclusion was legally open on the evidence and material before the Tribunal.

78    It was ultimately a matter for the Tribunal to consider and evaluate all of the facts and circumstances bearing on whether or not it was satisfied that the applicant’s permanent place of abode in each of the Relevant Years was in Dubai. The finding that the applicant did not reside in Australia according to ordinary concepts did not compel a conclusion that he had a permanent place of abode outside Australia. Although the applicant contended that the retention or maintenance of connections with Australia was not relevant to the question whether a person lived or intended to live in a place of abode outside Australia, this contention was bound up in the argument that it could be inferred that the Tribunal had failed to apply the correct test. The applicant did not otherwise suggest that the Tribunal had regard to any particular matters that were irrelevant to the application of paragraph (a)(i) of the statutory definition, nor that the Tribunal failed to have regard to any relevant matters. At least in the absence of manifest unreasonableness, the weight to be given to particular factors or considerations was for the Tribunal to determine: see generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J).

79    As mentioned above, the Tribunal accurately summarised the principles to be applied in determining whether it was satisfied that the applicant’s permanent place of abode was outside Australia. The findings made by the Tribunal do not betray any misunderstanding or failure to apply those principles. Although not a substitute for the statutory text, it was relevant for the Tribunal to consider whether the applicant had “abandoned” residence in Australia, for the purposes of assessing whether his place of abode in Dubai was “permanent”. The Tribunal properly framed the issue as whether the applicant had “established a place where [he was] residing permanently (rather than on a temporary basis, even if not indefinitely)” (T [124]). While some care must be taken to avoid a potential conflation of the concept of “permanent place of abode” with the test for the adoption of a domicile of choice, the Tribunal’s reasons do not reveal any confusion in this regard.

80    The competing contentions of the parties were summarised by the Tribunal at T [106]–[107]:

106.     The Applicant said that he abandoned his residence in Australia and had a permanent place of abode in Dubai during the Relevant Years. He pointed to the fact that he took up a full-time job in Dubai, that he moved his personal belongings associated with his pattern of living to Dubai and that he severed his social ties in Australia. Although the Dubai Apartment was leased on an annual basis, he lived there for five years and he chose that apartment with the intention of living there other than on a temporary basis. The Applicant and Mrs Quy furnished the Dubai Apartment themselves, partly with their own funds and in a manner which did not suggest a mere temporary presence. The Applicant contended that his history of working in Dubai and subsequent move to Thailand also informed the nature of his presence in Dubai during the Relevant Years.

107.     The Respondent contended that while the Applicant might have been physically present in Dubai for the significant portion of the Relevant Years, he did not act in a manner consistent with an individual intending to quit Australia and set up a permanent place of abode elsewhere. That is, the Respondent said that the Tribunal should not be satisfied that the Applicant had an intention to make Dubai his permanent place of abode. More particularly, the reason for the Applicant's presence in Dubai was solely for the purposes of an international work assignment with his Australian employer. His ability to remain in Dubai was entirely dependent on a temporary residence permit linked to sponsorship by his host company. The lease on the Dubai Apartment was in the name of his employer, which also paid for utilities for the property. The Respondent viewed the nature of the furnishings in the Dubai Apartment as being 'transient' and not indicative of an intention to set up a new home. Further, the Applicant disposed of the furnishings (and the vehicle he purchased in Dubai) when he moved to Thailand. The Respondent queried the reliability of the evidence given by the Applicant as to his social connections and activities in Dubai. Finally, the Respondent highlighted matters which demonstrated the Applicant's ongoing association with Australia, including his family, investment and financial arrangements, which were not indicative of a person intending to permanently quit Australia. In summary, the Respondent did not believe that the quality of the Applicant’s engagement with Dubai was consistent with a person who permanently resided there (or intended to).

81    The Tribunal considered the facts in relation to the applicant’s accommodation and manner of living outside Australia (T [110]–[116]), observing that the evidence was “equivocal” and “would not provide a sufficient basis for being satisfied that the Applicant had established a place of abode in Dubai that was more than temporary or transitory”: T [116]. The Tribunal also considered whether the applicant intended to abandon residence in Australia, including by reference to his maintenance of connections with Australia: T [117]–[125]. This included a family home in Australia; his frequent return visits to Australia; the retention of motor vehicles in Australia and the maintenance of his West Australian driver’s licence; the fact that some of his personal belongings were left at the family home (cf. the personal belongings taken with him to Dubai, which “were consistent with what might be required for living in Dubai on a longer term, but not necessarily permanent, basis” (T [113])); the maintenance of private health insurance for his family in Australia; the retention of bank accounts in Australia; and the payment of salary and superannuation contributions in Australia. The Tribunal took into account possible explanations in respect of each of those factors, and did not treat any of them as determinative.

82    Different minds might reach different conclusions on whether the applicant had a permanent place of abode in Dubai during the Relevant Years. Some might regard the facts of this case as more closely analogous to those in Applegate or Harding, placing emphasis on the common aspects of those cases rather than the distinguishing features. But such matters were specifically entrusted by paragraph (a)(i) of the statutory definition to the satisfaction of the Commissioner, or the Tribunal standing in his or her shoes.

83    In particular, the Tribunal placed weight on the applicant’s ongoing connections with Australia and the nature of his international work assignments with his Australian employer (through locally-based “host” entities within the corporate group). Notwithstanding the duration of those assignments, the Tribunal appears to have regarded the applicant’s residence in other countries as somewhat itinerant or peripatetic in nature, in so far as he had “moved to various locations, within and outside Australia, following different work assignments with his long-term employer”: T [125]. In some respects, his position might be seen as analogous to the diplomatic officers who were intended to be covered by the “domicile test” during their overseas postings, although that analogy cannot be taken too far: see Harding at [35] (Davies and Steward JJ), referring to the extrinsic materials in respect of the definition of “resident of Australia”. In the view of the Tribunal, the applicant’s work assignments did not demonstrate that he had abandoned residence in Australia, nor that he was “residing permanently (rather than on a temporary basis, even if not indefinitely)” in any other country.

84    In my view, the applicant has not established that the Tribunal’s failure to be satisfied was due to any “misapprehension, mistake, misconception, unreasonableness or miscarriage of judgment” that would authorise this Court to interfere and set aside its conclusion: cf. Avon Downs at 362–363 (Dixon J).

85    It follows that the first question of law should be resolved against the applicant, and the first ground of appeal must be dismissed.

The second question

86    The second question and its associated ground of appeal are closely related to the first question. In essence, the applicant contends that it should be inferred from the conclusion reached by the Tribunal that it must have failed to perform its function according to law, whether by proceeding on a misconception of the statutory question or otherwise.

87    The applicant emphasised the Favourable Findings made by the Tribunal, which were said to have compelled the conclusion that he had a permanent place of abode outside Australia during the Relevant Years. In broad terms, the Tribunal made findings that the applicant no longer resided in Australia, ceased his social and community activities in Australia, returned to Australia only for brief visits, worked in a full-time permanent job in Dubai, lived in an apartment in Dubai that was furnished with what was necessary for a comfortable existence, took personal belongings with him to Dubai, and engaged in social and recreational activities in Dubai. Conversely, the applicant contended that the Adverse Findings did not justify a conclusion that he did not have a permanent place of abode in Dubai. Those Adverse Findings were that the applicant had maintained various “connections” with Australia which were viewed as “objectively inconsistent” with having “abandoned” residence in Australia (see above at paragraph 38).

88    For the reasons set out above, I consider that it was open to the Tribunal to conclude that it was not satisfied that the applicant had a permanent place of abode outside Australia. That conclusion does not give rise to an inference that the Tribunal misunderstood the statutory test or otherwise erred in law, particularly in circumstances where its reasons for decision do not reveal any legal error: cf. Avon Downs at 360 (Dixon J). It was for the Tribunal to evaluate and weigh the matters addressed in the so-called Adverse Findings and the Favourable Findings respectively, along with all of the facts and circumstances, in considering whether the applicant was a “resident of Australia” under paragraph (a)(i) of the definition. In my view, this is not a case in which the Tribunal “could not properly have failed to have been satisfied” on the material placed before it that the applicant’s permanent place of abode was in Dubai: cf. Kolotex Hosiery at 542 (Barwick CJ). In such circumstances, no inference of legal error arises.

The third question

89    The applicant contended that the only course legally open to the Tribunal was to be satisfied that the applicant’s permanent place of abode was outside Australia during the Relevant Years, and that orders should therefore be made allowing the objection to the notices of assessment and directing the Commissioner to issue amended assessments to give effect to that decision.

90    The Commissioner submitted that, in the event that there was any vitiating error in the Tribunal’s decision, the matter should be remitted to the Tribunal to be redetermined in accordance with law: compare, in the context of an appeal under Pt IVC of the TAA, Addy at [142], [174]–[175], [193] (Derrington J), [312] (Steward J); see also Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 541 (Sheppard J).

91    In the light of my conclusions on the first two questions, the third question must be answered in the negative. I do not accept that only one conclusion was legally open to the Tribunal. Accordingly, even if the applicant had been able to establish an error of law that vitiated the Tribunal’s failure to be satisfied that his permanent place of abode was outside Australia, the appropriate outcome would have been to remit the matter to the Tribunal. However, as I have concluded that the Tribunal’s decision was not affected by any such legal error, the question of relief does not arise.

CONCLUSION

92    As the questions of law have been resolved against the applicant and none of the grounds of appeal has been made out, the appeal will be dismissed. There is no reason why costs should not follow the event.

Associate:

Dated:    4 September 2026