The test for individuals
Section 5 of the Foreign Acquisitions and Takeovers Act 1975 applies to an individual who is not an Australian citizen. Treasury's key concepts note explains that such a person is ordinarily resident only if both of these are true:
- the person has actually been in Australia during 200 or more days of the preceding 12 months; and
- at the relevant time, either the person is in Australia and their continued presence is not subject to any limitation as to time imposed by law, or the person is overseas but, immediately before their most recent departure, their continued presence was not so limited.
A person who is an unlawful non-citizen is treated as subject to a time limit. Treasury gives two examples that show how the tests work together.
- Rebecca, a Malaysian citizen with a permanent visa, was in Australia for the previous 12 months apart from a 10-day visit to her parents. She meets both tests, is ordinarily resident and is not a foreign person.
- Michael, a Chinese citizen, was in Australia for 257 days in the past 12 months but holds a visa limited to an 18-month research project. He passes the days test and fails the time-limit test, so he is a foreign person.
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Common groups
| Person | Status | What the guidance says |
|---|---|---|
| Australian citizen living in Australia | Not a foreign person | Ordinarily resident |
| Australian citizen living overseas | May be a foreign person | No set rule in the Act, so it is a question of fact and degree. Regulation 35 exempts citizens not ordinarily resident from needing approval for land |
| Permanent visa holder | Exempt for residential land | Regulation 38(2) exempts a permanent visa holder at the time of acquisition. The ATO notes one not ordinarily resident may be a foreign person in some circumstances |
| New Zealand citizen with a Special Category visa | Exempt for residential land | Regulation 38(2). New Zealand citizens not ordinarily resident are otherwise generally foreign persons |
| Temporary resident | Foreign person | Temporary visa allowing a continuous stay of more than 12 months, or a bridging visa while a permanent visa application is pending and the person resides in Australia |
| Foreign non-resident | Foreign person | Individual not ordinarily resident, including visa holders allowed to stay for only a limited period, generally under 12 months |
One wording difference matters at the edge. Section 4 of the Act and Treasury's key concepts note define a temporary resident by a continuous stay of more than 12 months, while the ATO's page says 12 months or more. The Act is the legal source, so a visa of exactly 12 months is not a temporary resident visa on the Act's wording, but a lawyer or the ATO can confirm a particular case. See the guides on 482 visa holders and bridging visas.
Companies, trusts and partnerships
For entities, the test looks at who holds a substantial interest, defined as at least 20% held alone or together with associates. A corporation or the trustee of a trust is a foreign person if one of the following holds a substantial interest:
- an individual not ordinarily resident in Australia;
- a foreign corporation; or
- a foreign government.
It is also a foreign person if two or more of those holders have an aggregate substantial interest, which is at least 40%. A general partner of a limited partnership is tested the same way against the partnership. A substantial interest may be held through other corporations or trusts, so ownership chains matter.
Associates include relatives, such as a spouse, parent, sibling or nephew, so a foreign person's holding is combined with theirs when testing for a substantial interest. In Treasury's example, Alice buys 10% of a company while her nephew already holds 10%. They are associates, so Alice holds a substantial interest of 20%.
A foreign corporation is generally one incorporated outside Australia, even if Australians own its shares. For an entity with its primary listing on an Australian exchange, holdings of less than 5% are not counted towards an aggregate substantial interest. Foreign governments, including state-owned enterprises and sovereign wealth funds, fall within the foreign government investor definition. For residential land there is no price threshold, so a foreign person needs approval whatever the price unless an exemption applies. The company and trust guide covers discretionary trusts and the state tests.
State tests are not identical
Each state applies its own definition for surcharge duty and land tax, as read from the revenue offices in October 2026.
| New South Wales | Queensland | |
|---|---|---|
| Individual | Temporary visa and bridging visa holders are foreign, with narrow exceptions | Not an Australian citizen or permanent resident |
| Company or trust | 20% and 40% tests | Incorporated overseas, or a foreign controlling interest of at least 50% |
Victoria publishes its own definition of a foreign purchaser for additional duty and a separate one for the absentee owner surcharge, and the State Revenue Office's pages set them out. The Victorian surcharge page has the rates. A person can be foreign federally and not at state level, or the reverse.
Keep reading
- When is FIRB approval required, and what are the FIRB thresholds?
- Can a foreign company or trust buy a house in Australia?
- Buying property with a citizen or resident partner: what changes for the foreign buyer
- Can a 482 (Skills in Demand) visa holder buy property in Australia?
- Can someone on a bridging visa buy property in Australia?
- Australia's ban on foreign buyers of established homes: dates, exceptions and what is still allowed
Frequently asked questions
Is an Australian citizen living overseas a foreign person?
They can be. Treasury's guidance says there is no specific rule and that ordinary residence is a question of fact and degree. Regulation 35 exempts an Australian citizen not ordinarily resident from needing approval to acquire land. State surcharge rules are separate.
Is a permanent resident a foreign person?
For buying residential land, no approval is needed if the person holds a permanent visa at the time of acquisition. The ATO says a permanent resident who is not ordinarily resident in Australia may be a foreign person in some circumstances.
How many days must I be in Australia?
For a non-citizen, the test is 200 or more days in the preceding 12 months, plus no legal time limit on your stay. Meeting the days test alone is not enough, as Treasury's Michael example shows: 257 days did not help because his visa was limited in time.
Who confirms whether I am a foreign person?
The legal definition is in Treasury's key concepts note and the Act. The ATO says that if you are unsure, you should seek independent legal advice. State revenue offices make their own decisions for state duty and land tax, using their own tests, so a federal answer does not settle the state position.
Sources
- Guidance Note 2: Key Concepts, version 5, Treasury Foreign Investment website
- Foreign Acquisitions and Takeovers Act 1975, Federal Register of Legislation
- Foreign Acquisitions and Takeovers Regulation 2015, Federal Register of Legislation
- Are you a foreign person buying property in Australia?, Australian Taxation Office
- Guidance Note 6: Residential Land, version 5 (1 July 2026), Treasury Foreign Investment website
- Surcharge purchaser duty for individuals, Revenue NSW
- Surcharge purchaser duty for corporations, Revenue NSW
- Understanding foreign purchaser additional duty, State Revenue Office Victoria
- Types of foreign persons for AFAD, Queensland Revenue Office
Checked 5 October 2026.
firbapproval.com.au is an independent guide. It is not affiliated with, endorsed by or connected to the Foreign Investment Review Board, the Australian Treasury or the Australian Taxation Office. We do not lodge or process applications. Applications are made to the ATO. General information only, not legal, tax, migration or financial advice.