Title: AAT Bulletin Issue No. 27/2015
Author: Davidson, Susan
Company: Administrative Appeals Tribunal

AAT Bulletin
Issue No. 27/2015				6 July 2015
The AAT Bulletin is a weekly publication containing a list of recently published AAT decisions and information relating to appeals against AAT decisions. The Bulletin also occasionally includes information on legislative changes that affect the AAT. 
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Contents
AAT Recent Decisions
Citizenship
Compensation
Corporations
Freedom of Information
Practice and Procedure
Social Security
Taxation
Veterans’ Affairs
Appeals
Appeals lodged
Appeals finalised

AAT Recent Decisions
This section of the Bulletin provides information about decisions recently published by the AAT.  Only AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Citizenship
Saleem Al-Khalidi and Minister for Immigration and Border Protection [2015] AATA 438; 24/6/2015; Deputy President SE Frost
Eligibility – citizenship by conferral – general residence requirement – non citizen Applicant spouse of Australian citizen – spousal discretion under s 22(9) of Australian Citizenship Act 2007 – whether the Applicant was a permanent resident during period of absence – whether the Applicant held a permanent visa immediately before last leaving Australia – decision under review affirmed
Compensation
Alarcon and Australian Postal Corporation (Compensation) [2015] AATA 475 (2 July 2015), Senior Member JF Toohey, Dr M Couch, Member

Compensation – disease – psychological condition – diagnosis – personality disorder with paranoid ideation – whether events complained of occurred – Applicant’s perception – whether employment contributed to a significant degree to exacerbation – Tribunal not satisfied events occurred as Applicant claimed – not satisfied condition exacerbated by employment – decisions under review affirmed
Altemuhl and Comcare [2015] AATA 452; 26/6/2015; Dr P McDermott RFD, Senior Member
Whether Applicant suffered an injury – whether aggravation of degenerative condition contributed to, to a significant degree by employment – decision under review affirmed
Maalouf and Australian Postal Corporation [2015] AATA 461; 30/6/2015; Senior Member J Handley
Applicant is 65 years of age and employed by the respondent for 43 years – duties within the employment had been undertaken repetitively and rapidly – full thickness tear of the supraspinatus tendon of each shoulder – applicant continues to work reduced hours and performing modified duties – decisions concerning compensation entitlements for lost overtime, physiotherapy treatment, permanent impairment of left shoulder and non-economic loss for each shoulder set aside and substituted – decision concerning permanent impairment of right shoulder affirmed
Power and Comcare [2015] AATA 471; 30/6/2015; Dr J Popple, Senior Member
Commonwealth employees – whether Applicant continues to suffer effects of injury – whether fall an aggravation – Applicant exaggerates symptoms – reliance on analgesics and ‘TENS’ machine – whether Applicant has psychiatric disorder – whether contributed to, to a significant degree, by employment – Applicant entitled to compensation for medical expenses – whether Applicant entitled to compensation for incapacity for work – remitted to Comcare – decision under review set aside

Corporations 
Lantern Hotel Group and Australian Securities and Investments Commission [2015] AATA 458; 30/6/2015; Senior Member PW Taylor SC

Buy back from security holders – ASIC refusal to grant exemption from buy back provision in Corporations Act – exemption only sought in relation to a particular transaction independently assessed as reasonable and fair – decision under review set aside – decision subsequently remitted to ASIC
Freedom of Information
Rovere and Secretary, Department of Education and Training [2015] AATA 462; 30/6/2015; Dr J Popple, senior Member
Exempt documents – whether documents conditionally exempt – whether documents contain deliberative matter – whether modelling is purely factual material – public interest test – whether frankness and candour can be factor against access – whether fact that document is question time brief is factor against access – disclosure would damage operation of deregulated market – disclosure could adversely affect markets and financial frameworks – access at this time would, on balance, be contrary to the public interest – decision under review affirmed
Practice and Procedure
Issa and Migration Agents Registration Authority [2015] AATA 451; 26/6/2015; The Hon B Tamberlin QC, Deputy President
INTERLOCUTORY DECISON – whether the Tribunal has jurisdiction to hear the matter – whether Tribunal can review an invalid decision – preliminary questions of law – clarifying issues before the Tribunal – whether a referral was made under section 319 of the Migration Act – referral of the conduct of a migration agent to an authority responsible for disciplining lawyers – the Tribunal has jurisdiction to hear the substantive matter
Killoch and Van Oord Australia Pty Limited [2015] AATA 457; 30/6/2015; Senior Member JF Toohey
Extension of time – whether acceptable explanation for delay – delay on part of solicitor – prejudice – merits of the substantive application – public interest – Tribunal satisfied it is reasonable in all the circumstances to grant the extension of time
PZVS and Secretary, Department of Social Services and Anor [2015] AATA 460; 19/6/2015; Dr P McDermott RFD, Senior Member
Extension of time – application for extension of time – whether reasonable in all the circumstances to extend time – application refused

Social Security
Abraha and Secretary, Department of Social Services [2015] AATA 472; 20/5/2015; Professor R McCallum AO, Member
Disability Support Pension – whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairment rated 20 points or more under the Impairment Tables – decision under review affirmed
Borkovic and Secretary, Department of Social Services (Social services second review) [2015] AATA 474; 1/7/2015; Miss EA Shanahan, Member
Disability support pension claim – predominant medical condition degenerative disease of lumbar spine, hips and knees – other conditions fully diagnosed, treated and stabilised – impairment rating attracted 10 points – recent diagnosis and treatment of depression – decision affirmed
Confidential and Secretary, Department of Social Services [2015] AATA 454; 29/6/2015; Senior Member BJ McCabe
Overpayments and debt recovery – parenting payment – dispute regarding accuracy of payroll records – no corroborating evidence to suggest employer’s records incorrect – Applicant not entitled to payments received – no administrative error made by the Commonwealth – good faith – no special circumstances – no discretion to waive debt – reviewable decision affirmed
Helm and Secretary, Department of Social Services [2015] AATA 466; 30/6/2015; Senior Member BJ McCabe
Disability Support Pension – whether conditions fully diagnosed, fully treated and fully stabilised at the relevant time – whether Applicant has a continuing inability to work – program of support not completed – whether Applicant has a “severe impairment” – decision under review affirmed
JGJC and Secretary, Department of Social Services [2015] AATA 459; 30/6/2015; Senior Member BJ McCabe
Disability Support Pension – Program of support not completed – whether Applicant had a “severe impairment” during the assessment period – whether 20 impairment points can be allocated under a single table – decision under review affirmed
MacDonald and Secretary, Department of Social Services [2015] AATA 465; 26/5/2015; Dr P McDermott, Senior Member
Disability Support Pension – whether Applicant had relevant impairment – whether impairment rating of at least 20 points – decision under review affirmed
Taxation
Baker and Commissioner of Taxation [2015] AATA 469; 30/6/2015; Senior Member FD O’Loughlin
Superannuation fund, foreign superannuation fund – Whether a USA Individual Retirement Account or IRA is a foreign superannuation fund – Whether a proposed payment from an IRA would be a payment from a scheme for the payment of benefits in the nature of superannuation upon retirement or death – decision affirmed
Bennett and Ors and Commissioner of Taxation [2015] AATA 455; 29/6/2015; The Hon B Tamberlin QC, Deputy President
Income tax – where Commissioner has formed an opinion there was fraud or evasion – whether assessments were default assessments – determination of outstanding tax-related liabilities after taxpayer’s death – onus of proof – decisions under review affirmed
Jayasinghe and Commissioner of Taxation [2015] AATA 456; 29/6/2015; The Hon B Tamberlin QC, Deputy President
Income tax – whether foreign income exempt – whether Applicant engaged by the UNOPS as an employee – whether Applicant held an office while engaged with UNOPS – decision under review set aside
Prasad Business Centres Pty Ltd and Commissioner of Taxation [2015] AATA 411; 11/6/2015; Professor R Deutsch, Deputy President
Income Tax – personal services income – personal services entity – personal services business determination – results test – whether a personal services business determination should be made – whether Applicant’s income was for producing a result – decision affirmed
Veterans’ Affairs
Germain and Repatriation Commission [2015] AATA 473; 23/6/2015; Senior Member AC Cotter

Claim for travel expenses for partner – whether partner “participated” in the veteran’s treatment – decision under review affirmed
Herrod and Repatriation Commission [2015] AATA 464; 30/6/2015; Ms R Perton, Member
Veterans’ entitlements – alcohol abuse disorder – hypertension – sleep apnoea – stressors – date of clinical onset – whether conditions war-caused – decision under review affirmed

Appeals
This section of the Bulletin provides information about appeals against AAT decisions that have been lodged or finalised.  Only appeals in relation to AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Appeals lodged
CASE NAME | AAT reference
Lim v Comcare | [2015] AATA 189
Rekic v Secretary, Department of Social Services | [2015] AATA 369
Darnell v Australian Community and Pharmacy Authority & Sammut | [2015] AATA 263
Comcare v Reardon | [2015] AATA 360
Secretary, Department of the Prime Minister and Cabinet v Sanderson & Secretary, Department of Infrastructure and Regional Development | [2015] AATA 361
Appeals finalised
CASE NAME | AAT reference | court Reference
Byrt v Deputy Commissioner for Taxation | [2014] AATA 30 | [2015] FCCA 1761 [2015] FCCA 1762

May v Military Rehabilitation and Compensation Commission

[2011] AATA 886

[2015] FCAFC 93
[2014] FCA 406

Minister for Immigration and Border Protection v Farag & Administrative Appeals Tribunal | [2014] AATA 927 | [2015] FCA 646
Clare v Australian Community Pharmacy Authority | [2014] AATA 932 | [2015] FCA 653

Haritos & Kyritsis v Commissioner of Taxation

[2013] AATA 112

[2015] FCAFC 92
[2014] FCA 96

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^AAT ^BULLETIN	^ISSUE ^27/2015