Title: AAT Bulletin Issue No.17/2018 (RTF version)
Author: Michael McIvor
Company: Administrative Appeals Tribunal

AAT Bulletin
Issue No. 17/2018	             7 May 2018
The AAT Bulletin is a weekly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals Divisions. The Bulletin also regularly includes a sample of decisions recently published in the AAT’s Migration & Refugee Division and Social Services & Child Support Division. It occasionally includes information on legislative changes that affect the AAT. 
It is recommended that the Bulletin be read on-line. This has the advantage of allowing the reader to use hyperlinks to access the full text of cases and other internet sites mentioned in the Bulletin.
The AAT does not make any representation or warranty about the accuracy, reliability, currency or completeness of any material contained in this Bulletin or on any linked site. While the AAT makes every effort to ensure that the material in the Bulletin is accurate and up-to-date, you should exercise your own independent skill and judgement before you rely on it. Information contained in this Bulletin is not legal advice and is intended as a general guide only.  You should rely on your own advice or refer to the full cases and legislation in relation to any proceedings.
Enquiries regarding this publication may be directed to aatweb@aat.gov.au.

Contents
AAT Recent Decisions
Citizenship
Compensation
Defence
Freedom of Information
Migration
Practice and Procedure
Social Security
Appeals
Appeals lodged
Appeals finalised

AAT Recent Decisions
This section of the Bulletin provides information about all decisions recently published in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals. This list also includes selected child support decisions published by the Social Services & Child Support Division and examples of recent decisions published by the Migration & Refugee Division.  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
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 (30 April 2018); Senior Member C Puplick AM

CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – whether the applicant is of good character – making false statements in citizenship applications – application of Citizenship Policy – decision affirmed

Shah and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1085 (1 May 2018); Senior Member T Tavoularis

CITIZENSHIP – citizenship by conferral – where citizenship application took over four years to process – where Applicant resided overseas for much of that time – where Applicant meets most other requirements for citizenship – section 21(2)(g) of the Citizenship Act  2007 (Cth) – whether Applicant is likely to reside or to continue to reside in Australia – whether Applicant is likely to maintain a close and continuing relationship with Australia – whether Applicant has sufficient ties to the Australian community – decision under review affirmed

Compensation
Snell and Commonwealth of Australia (Compensation) [2018] AATA 1107 (2 May 2018); Senior Member T Tavoularis

COMPENSATION – seafarers compensation – metastatic malignant melanoma – whether the Applicant’s employment contributed to in a material way his condition – where Applicant had spent more than forty years at sea – degree of permanent impairment – calculation of non-economic loss – decision under review set aside and remitted

PRACTICE AND PROCEDURE – issue estoppel – Matusko methodology – where Applicant had previously been successful before the Tribunal in a consent decision – where then-Respondent had accepted liability for broad range of solar induced skin conditions – whether issues the same – whether connection between Applicant’s current and former conditions – where Applicant’s current condition the same as one for which liability had been accepted – whether there is a reason to allow re-litigation – where Respondent sought to adduce new evidence – whether Respondent could have adduced the same or similar evidence in earlier proceedings – whether justice to the parties favours re-litigation – the discretion to allow re-litigation was not enlivened

Defence
Seizovic and Commonwealth Superannuation Corporation [2018] AATA 1084 (1 May 2018); Deputy President Dr P McDermott RFD

DEFENCE – Defence force retirements and death benefits – service in Royal Australian Navy – medical discharge – invalidity benefit granted – applicant classified as Class C – the kinds of civil employment that might be reasonably undertaken – the degree to which the retirement impairments diminished the applicant’s capacity to undertake the kinds of civil employment – the applicant could reasonably undertake the role of mechanical engineering technician – applicant to be classified as Class B – decision set aside

Freedom of Information
Lever and Comcare (Freedom of information) [2018] AATA 1089 (27 April 2018); Deputy President, The Hon. D Cowdroy OAM QC

FREEDOM OF INFORMATION – request access to certain documents – decision not to continue review – notice under section 71 – whether documents are documents of an agency – constructive possession – legal professional privilege – allegation of fraud and misleading conduct – decision varied

Theophanous and Australian Criminal Intelligence Commission (Freedom of information) [2018] AATA 1106 (1 May 2018); Deputy President BW Rayment

FREEDOM OF INFORMATION – scope and search – Tribunal satisfied that respondent took all reasonable steps to locate relevant documents – exemption – legal professional privilege – whether “real harm” caused if documents subject to legal professional privilege exemption claim were produced – power to release exempt document does not arise under Freedom of Information Act 1982 -whether waiver of privilege – privilege not waived – documents affecting enforcement of law – personal privacy exemption – business name exemption – certain operation of agencies exemption – decision affirmed
Migration
GSKD and Minister for Immigration and Border Protection (Migration) [2018] AATA 1078 (27 April 2018); Deputy President S Boyle

Migration – refusal of a visa – visa applicant overseas – substantial criminal record – protection of the Australian community from criminal or other serious conduct – sexual crimes are to be viewed seriously – risk to the Australian community – best interests of the child – decision under review affirmed

Kumar and Minister for Home Affairs (Migration) [2018] AATA 1105 (2 May 2018); Mr A Maryniak QC, Member

MIGRATION – refusal to grant Employer Nomination (Permanent) (Class EN) visa – Applicant has conviction of sexually based offence involving 17 year old child – refuse to grant a visa – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of Australian community – other considerations – decision under review set aside and remitted

LPGJ and Minister for Home Affairs (Migration) [2018] AATA 1075 (27 April 2018); Senior Member R Cameron

MIGRATION – non-revocation of mandatory visa cancellation – applicant has had multiple terms of imprisonment exceeding 12 months – applicant fails character test by virtue of substantial criminal record – protection of Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – decision under review affirmed

MIGRATION – other considerations in deciding whether to revoke a mandatory cancellation of a visa – international relations – request by applicant that the Tribunal contact UK Government to ascertain their view on the possible return of the applicant to the United Kingdom – practical difficulties in making such an inquiry – attitude of a foreign state towards the return of a non-citizen with a history of criminal conduct is an irrelevant consideration for the Tribunal in ss 501/501CA character matters – request refused

Siueva and Minister for Home Affairs (Migration) [2018] AATA 1079 (27 April 2018); Brigadier AG Warner, Member

MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations -strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed 
Practice and Procedure
Australian College of Vocational Studies Pty Ltd and Australian Skills Quality Authority [2018] AATA 1088 (20 March 2018); K Parker, Member

PRACTICE AND PROCEDURE – request for stay orders – decisions under review were decisions to cancel a training organisation’s registration under the National Vocational Education and Training Regulator Act 2011 (Cth) and under the Education Services for Overseas Students Act 2000 (Cth) – section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) – factors to be considered in deciding whether to grant a stay – stay granted subject to certain conditions

Bradley and Secretary, Department of Education and Training [2018] AATA 1074 (27 April 2018); Dr L Bygrave, Member

PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – whether substantive matter has merit – remission of HECS-HELP debt – units of study already completed – no jurisdiction to review decision – extension of time application refused

Lever and Comcare (Freedom of information) [2018] AATA 1090 (26 April 2018); Deputy President, The Hon. D Cowdroy OAM QC

PRACTICE AND PROCEDURE – application for recusal on grounds of actual or apprehended bias – application refused

Lever and Comcare (Freedom of information) [2018] AATA 1091 (26 April 2018); Deputy President, The Hon. D Cowdroy OAM QC

PRACTICE AND PROCEDURE – request for adjournment of second interlocutory hearing – multiple requests for adjournment – application for adjournment refused

Moretta and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1086 (1 May 2018); Dr L Bygrave, Member

PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – whether substantive matter has merit – citizenship by conferral – likely to, or will continue to, reside in Australia or maintain a close and continuing association – extension of time application granted
Passports

S and Minister for Foreign Affairs [2018] AATA 1083 (27 April 2018); Deputy President BW Rayment

PASSPORTS – Australian citizen refused a passport  – where applicant is a child – applicant residing in Vietnam – where arrangements for schooling of child in Australia if passport issued – where child will live with family friend in Australia –  consent for child to be issued with a passport withheld by one parent –  effect of passport refusal on child’s welfare – Vietnamese court orders – application of Minister’s Determination at the time of refusal and on review – where applicant has previously been issued a passport – consideration of Australia’s obligation in relation to the [Hague] Convention on the Civil Aspects of International Child Abduction – decision under review set aside and substituted
Social Security
Bensen and Secretary, Department of Social Services (Social services second review) [2018] AATA 1076 (27 April 2018); Deputy President J Sosso

SOCIAL SECURITY – newstart allowance – sickness allowance – austudy payment – overpayments – payments under income protection insurance policies - whether debts against the Commonwealth are owed – Whether income insurance payments are ‘ordinary income’ – whether income insurance payments are ‘compensation’ - debt write off  – whether sole administrative error - special circumstances – matters of relevance in determining special circumstances – decision under review affirmed

Dickson and Secretary, Department of Social Services (Social services second review) [2018] AATA 1087 (27 April 2018); M Hyman, Member

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, fully treated and fully stabilised – degenerative condition of both knees – hearing loss – tinnitus – construction of Table 11 of the Impairment Tables – decision affirmed

Manjunath and Secretary, Department of Social Services (Social services second review) [2018] AATA 1077 (27 April 2018); Senior Member R Cameron

SOCIAL SERVICES – Disability Support Pension (DSP) – indefinite portability – maximum portability period – extended portability period – cancellation of DSP – portability of DSP – period of absence – temporary absence – whether a person is residing in Australia – whether travel was for humanitarian purpose or acute family crisis – eligible medical treatment – severely impaired – advance payment of Social Security benefits – deduction from DSP – whether advance payment is refundable – decision under review affirmed

McMahon and Secretary, Department of Social Services (Social services second review) [2018] AATA 1081 (30 April 2018); Ms A Burke, Member

SOCIAL SECURITY – disability support pension – whether qualified – small fibre polyneuropathy and a mental health disorder are fully diagnosed, treated and stabilised  –whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review affirmed

Nunn and Secretary, Department of Social Services (Social services second review) [2018] AATA 1080 (27 April 2018); Senior Member Ms AF Cunningham
SOCIAL SECURITY – disability support pension – severe impairment – hearing loss – continuing inability to work provision is not satisfied – decision under review affirmed  
Appeals
This section of the Bulletin provides information about appeals that have been lodged or finalised against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals Divisions.  Information is only included about appeals relating to AAT decisions that have been published on AustLII.  Full copies of the decisions can be accessed through the hyperlinks provided below.  

Appeals lodged
CASE NAME | AAT reference
Ford and Comcare | [2018] AATA 648
Forrest and Repatriation Commission | [2018] AATA 759
GJQD and Minister for Immigration and Border Protection | [2018] AATA 2

Manikantan and Secretary, 
Department of Jobs and Small Business

[2018] AATA 685

NWLH and Minister for Immigration and Border Protection | [2017] AATA 2034
Stathopoulos and Comcare | [2018] AATA 651
Vaofusi and Minister for Immigration and Border Protection | [2017] AATA 2585

Appeals finalised
CASE NAME | AAT reference | court Reference
Minister for Immigration and Border Protection v VDQS | [2017] AATA 1420 | [2018] FCA 574

© Commonwealth of Australia 2016

With the exception of the Commonwealth Coat of Arms and any third party material, this work is licensed under a Creative Commons Attribution 3.0 Australia Licence.  Content from this publication should be attributed as: Administrative Appeals Tribunal, AAT Bulletin.
To the extent that copyright subsists in third party material, it remains with the original owner and permission may be required to reuse the material.
The terms under which the Coat of Arms can be used are detailed on the following website: http://www.itsanhonour.gov.au/coat-arms/. 
Enquiries regarding the licence are welcome at aatweb@aat.gov.au. 
This licence is limited to the AAT Bulletin and does not extend to the full text of AAT decisions.  Separate licence terms for AAT decisions can be found on AustLII.

^AAT ^BULLETIN	^ISSUE ^17/2018