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11 Mar 15 Backpacker not resident of Australia under 183 day test – Re Clemens

A backpacker of German origin who spent a total of 186 days in Australia during the income year ended 30 June 2013 has been found by the Administrative Appeals Tribunal not to have been a resident of Australia during that income year.

This was one of three similar cases heard together by the Tribunal. Because the fact patterns in the three cases differed materially, the Tribunal gave separate decisions. The applicable principles and the decisions in each case were, however, the same. For full discussion of the applicable principles see Re Koustrup.

In Re Clemens, the applicant entered Australia under a “working holiday visa”. He described himself as a “visitor or temporary entrant” coming to Australia for the main reason of having a holiday. He nominated that his intended length of stay in Australia would be five months. While in Australia the applicant stayed in temporary accommodation and worked for short periods in various places.

The Tribunal found on the facts that the applicant had a usual place of abode at his parents’ place in Germany at all relevant times. The Tribunal was accordingly of the view that, for the year ended 30 June 2013, the applicant was not a resident of Australia.

Re Clemens and FCT [2015] AATA 124 (Professor R Deutsch, Deputy President, 6 March 2015).

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