AAT Bulletin
Issue No. 18/2018	           14 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.
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Contents
AAT Recent Decisions
Child Support
Compensation
Migration
Practice and Procedure
Refugee
Social Security
Taxation
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised
Statements of Principles
New Statements of Principles
Amended Statements of Principles
Statements of Principles to be revoked

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.
Child Support
Noyce and Eales (Child support) [2018] AATA 954 (27 February 2018); C Breheny, Member
Child support – Percentages of care – Revocation of existing determinations – New determination of percentages of care – Both parents have less than 35% care – Terminating event – Decision under review affirmed
Werner and Werner (Child support) [2018] AATA 947 (7 March 2018); S Letch, Member
Child support – Particulars of the administrative assessment – Taxable income assessed by the Australian Tax Office – Adjusted taxable income correctly applied – Decision under review affirmed
Boulton and Maloney (Child support) [2018] AATA 958 (6 March 2018); Y Webb, Member
Child support – Care percentage – Date of effect of objection decision under subsection 87AA(2) – Whether the objection was lodged late – Objection lodged within time – Decision under review set aside and substituted
Carling and Child Support Registrar (Child support) [2018] AATA 959 (8 March 2018); P Jensen, Member
Child support – Particulars of the administrative assessment – Adjusted taxable income applied for past period – Refusal to grant extension of time to object – Incorrect determination of adjusted taxable income – Potential merit – Decision under review set aside and substituted that extension of time be granted
Child support – Particulars of the administrative assessment – Adjusted taxable incomes applied for past periods – Refusal to grant extension of time to object – Poor prospects of success – Decisions under review affirmed
Compensation
Chu Yu Chee and Comcare (Compensation) [2018] AATA 1241 (3 May 2018); Deputy President S Boyle and Dr M Evans, Senior Member

COMPENSATION – Commonwealth employee – sprain of shoulder and upper arm – accepted conditions – whether applicant continues to suffer from the effects of the injury – whether applicant presently entitled to medical expenses or incapacity payments – decision under review affirmed

MacGinnes and Residual Assco Group Limited (Compensation) [2018] AATA 1248 (7 May 2018); Deputy President K Bean

WORKERS’ COMPENSATION – Seafarers – Jurisdiction – Respirable asbestos fibres – Whether there has been a default event – Whether reviewable decisions are deemed to have been made – Whether there can be proper service of a claim on a deregistered company – Whether re registration of company can retrospectively validate service of a claim – Whether time limit to apply for reconsideration applies with respect to deemed decisions – Where Minister has made a declaration under the Act – Where the Seacare Authority is acting as the Seacare Fund – Whether time limits to make determinations and issue reconsiderations apply to the Seacare Authority

Mackay and Comcare (Compensation) [2018] AATA 1244 (3 May 2018); Deputy President J Sosso

COMPENSATION – whether medical treatment in relation to the Applicant’s compensable injury – whether medical treatment reasonable for the Applicant to obtain in the circumstances – whether the Applicant is incapacitated for work as a result of a compensable injury – whether the Applicant continues to suffer from the effects of his compensable low back injury of 1995 or whether the Applicant’s injury of 1995 had resolved itself – reviewable decision set aside and substituted

Tucker and Comcare (Compensation) [2018] AATA 1251 (10 May 2018); Senior Member E Fice

COMPENSATION – claim for permanent impairment and non-economic loss – claim for household and attendant care services – 10% whole person impairment – 28% non-economic loss – decision on permanent impairment and non-economic loss set aside and remitted with directions in accordance with Tribunal reasons – Applicant able to provide for her personal care and does not reasonably require assistance with household or attendant care services – decision on household and attendant care services affirmed

PRACTICE AND PROCEDURE – evidence – no evidence from any witness who has observed the Applicant’s degree of incapacity arising from psychological injury – medical practitioners who have treated Applicant relied exclusively on her self-reporting of what she can and cannot do – Tribunal asked to form a view on credibility of applicant’s evidence – demeanour in the witness box not necessarily indicative of the truthfulness of a witness – objective evidence against which an applicant’s evidence can be compared is preferable
Migration
Usoalii and Minister for Immigration and Border Protection (Migration) [2018] AATA 1112 (3 May 2018); Deputy President JW Constance

MIGRATION – mandatory visa cancellation – character test – discretion to revoke mandatory visa cancellation – protection of the Australian community – nature and seriousness of conduct – robbery in company – assault – risk to community should conduct be repeated – best interests of minor children – expectations of Australian community – strength, nature and duration of ties – extent of impediments if removed – decision affirmed

Badoola (Migration) [2018] AATA 1167 (4 April 2018); N McGowan, Member

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – MOC assessment – Visa applicant has a moderate functional impairment – Condition is stable – New MOC is unnecessary – Granting of the visa would be unlikely to result in undue cost to the Australia community – Decision under review remitted

SINGH (Migration) [2018] AATA 1146 (5 April 2018); W Banfield, Member

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Last enrolment had been cancelled – Not currently enrolled in a registered course of study – Criteria for the grant of a Subclass 500 (Student) visa are not met – Decision under review affirmed
Zhang (Migration) [2018] AATA 1203 (6 April 2018); S Trotter, Member
Migration – Parent (Migrant) (Class AX) – Subclass 103 (Parent) visa – Whether the review applicant is a settled Australian citizen – Extended time away from Australia – Cared for parents in China – Continued with his business in Australia – Review applicant elected for his children to be Australian citizens – Family has moved back to Australia – Child at school in Australia – Decision under review remitted

Practice and Procedure
ZHRM and Child Support Registrar (Child support second review) [2018] AATA 1246 (4 May 2018); Senior Member C Puplick AM 

PRACTICE AND PROCEDURE – Jurisdiction – whether Tribunal has jurisdiction to review matter – child support – first review application dismissed under section 42B – second tier Tribunal review only available for certain decisions – no jurisdiction
Refugee
1712839 (Refugee) [2018] AATA 1216 (12 March 2018); M Hawkins, Member
Refugee – Protection visa – Soloman Islands – Threats – Expired Visa – Credibility – Decision under review affirmed
1723913 (Refugee) [2018] AATA 1210 (14 March 2018); C Smolicz, Member
Refugee – Protection visa – Vietnam – Economic reasons – Unpaid debt – Poor government system – Credibility – Decision under review affirmed
1509008 (Refugee) [2018] AATA 1218 (16 March 2018); L Mojsin, Member
Refugee – Protection visa – Georgia – Imputed political opinion – United National Movement branch coordinator – Fear of Harm – Threatened by Georgian Dream party members – Family went into hiding – Divorced wife on papers – Enable the applicants wife to depart on a different name – 1 year delay in leaving Georgia –Credibility concerns – Inconsistent evidence – Created his claims in order to obtain the visa – No adverse political profile – Decision under review affirmed

1517869 (Refugee) [2018] AATA 1061 (21 March 2018); A B Baker, Member
Refugee – Protection visa – Sri Lanka – Ethnicity – Tamil – Political opinion – Imputed with anti-government opinion – Social group – Young Tamil woman – Extended family of LTTE member – Estranged from family – Victim of sexual assault – Harassed by CID and pro-government militia – Failed asylum seeker – Credibility concerns – Decision under review affirmed
1720625 (Refugee) [2018] AATA 1064 (23 March 2018); L Hardy, Member
Refugee – Protection visa – Brazil – Complementary protection – Federal Circuit Court remittal – Original claims no longer relevant – Eldest child now Australian citizen – Best interests of children – Decision under review affirmed
Social Security
Bai and Secretary, Department of Social Services (Social services second review) [2018] AATA 1247 (8 May 2018); Mrs JC Kelly, Senior Member

SOCIAL SECURITY – cancellation of carer payment – cancellation of carer allowance with carer supplement – debt raised for carer payment and carer allowance – whether the carer payment and carer allowance were correctly cancelled – whether the Applicant was overpaid for the relevant period – whether the overpayment is a debt owed to the Commonwealth – whether all or part of the debt should be written off or waived – decision affirmed

Bornecrantz and Secretary, Department of Social Services (Social services second review) [2018] AATA 1108 (2 May 2018); Deputy President BW Rayment

SOCIAL SECURITY – age pension – assets test – the assets reduced rate – property valuation – the income reduced rate – decision to reduce social security benefits – decision based on assessment of property value – outstanding company loans – decision set aside and remitted

Gjorsevska; Secretary, Department of Social Services and (Social services second review) [2018] AATA 1109 (3 May 2018); Senior Member DJ Morris

SOCIAL SERVICES – Disability Support Pension (DSP) – review of Social Services and Child Support Division decision - whether person qualified – whether impairments fully diagnosed, fully treated and fully stabilised – reasonable treatment for major diagnosed condition not undertaken in claim period – decision set aside and substituted with decision that Respondent not eligible for DSP in relation to this claim

Innes and Secretary, Department of Social Services (Social services second review) [2018] AATA 1250 (9 May 2018); Dr L Bygrave, Member

SOCIAL SECURITY – disability support pension – impairment – whether disability is fully diagnosed, treated and fully stabilised – whether applicant’s impairments attract 20 points or more under the Impairment Tables – mental health – substance abuse – decision under review affirmed

Montenegro and Secretary, Department of Social Services (Social services second review) [2018] AATA 1252 (8 May 2018); Senior Member C Puplick AM

SOCIAL SECURITY – austudy payment – whether applicant qualified for 25% concessional study-load – interpretation of "undertaking qualifying studies" – requirements for full-time or concessional study – normal amount of full-time study – decision under review affirmed

Pavlovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 1245 (3 May 2018); Mr C Puplick AM, Senior Member

SOCIAL SECURITY – disability support pension – rejection of claim for disability support pension – qualification period – eligibility – whether disability is fully diagnosed, treated and stabilised – whether the Applicant’s impairment attracts 20 points or more under the impairment tables – rheumatoid arthritis – depression and anxiety – decision affirmed

Solberg and Secretary, Department of Social Services (Social services second review) [2018] AATA 1242 (4 May 2018); Dr M Evans, Senior Member and Mr C Edwardes, Member

SOCIAL SECURITY – aged pension – appeal from AAT Tier 1 Review – whether the Applicant is a member of a couple – financial aspects of the relationship – pooling of resources – the nature of the household – social aspects of the relationship – sexual relationship – total picture of the relationship – whether a confidentiality order under s 35(2) or (3) should be made – decision set aside and remitted
Taxation
Hussain and Commissioner of Taxation (Taxation) [2018] AATA 1111 (3 May 2018); Mrs JC Kelly, Senior Member

TAXATION AND REVENUE – income tax – deductions – work-related expenses –whether Applicant is entitled to claim deductions for work-related expenses for the financial years of 2013 and 2014 – whether there is written evidence to substantiate deductions claimed – work-related travel expenses – work-related car expenses – other work-related expenses – objection decision varied
Veterans' Affairs
Hunt and Repatriation Commission (Veterans' entitlements) [2018] AATA 1110 (3 May 2018); Senior Member DJ Morris
VETERANS’ AFFAIRS – claimed conditions – whether war caused – psychiatric condition – alcohol condition (in remission) – irritable bowel syndrome – colorectal condition – claim of bullying – claim of Category 1A, 1B and 2 Stressors for incidents on operational service – not satisfied evidence points to link to operational service – 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	
Ryan v Comcare	[2018] AATA 765	
Appeals finalised
CASE NAME	AAT reference	court Reference	
None finalised			

Statements of Principles
This section of the Bulletin provides information on recent developments in relation to Statements of Principles made by the Repatriation Medical Authority for the purposes of the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. 
New Statements of Principles
The AAT has been advised that the Repatriation Medical Authority has made the following new Statements of Principles. They take effect from 28 May 2018:
Mesenteric panniculitis (Balance of Probabilities) – No. 50 of 2018
https://www.legislation.gov.au/Details/F2018L00529 
Mesenteric panniculitis (Reasonable Hypothesis) – No. 49 of 2018
https://www.legislation.gov.au/Details/F2018L00528 
Electrical injury (Balance of Probabilities) – No. 42 of 2018
https://www.legislation.gov.au/Details/F2018L00536
Electrical injury (Reasonable Hypothesis) – No. 41 of 2018
https://www.legislation.gov.au/Details/F2018L00535 
Herpes simplex (Balance of Probabilities) – No. 40 of 2018
https://www.legislation.gov.au/Details/F2018L00542 
Herpes simplex (Reasonable Hypothesis) – No. 39 of 2018
https://www.legislation.gov.au/Details/F2018L00540 
Temporomandibular disorder (Balance of Probabilities) – No. 48 of 2018
https://www.legislation.gov.au/Details/F2018L00541
Temporomandibular disorder (Reasonable Hypothesis) – No. 47 of 2018
https://www.legislation.gov.au/Details/F2018L00539 
Central serous chorioretinopathy (Balance of Probabilities) – No. 46 of 2018
https://www.legislation.gov.au/Details/F2018L00553  
Central serous chorioretinopathy (Reasonable Hypothesis) – No. 45 of 2018
https://www.legislation.gov.au/Details/F2018L00552 
Cushing syndrome (Balance of Probabilities) – No. 44 of 2018
https://www.legislation.gov.au/Details/F2018L00556 
Cushing syndrome (Reasonable Hypothesis) – No. 43 of 2018
https://www.legislation.gov.au/Details/F2018L00555 
Tension-type headache (Balance of Probabilities) – No. 38 of 2018
https://www.legislation.gov.au/Details/F2018L00564 
Tension-type headache (Reasonable Hypothesis) – No. 37 of 2018
https://www.legislation.gov.au/Details/F2018L00563 
Amended Statements of Principles
The AAT has been advised that the Repatriation Medical Authority has made the following instruments amending the Statements of Principles for the specified conditions. The amendments take effect on 28 May 2018:
Malignant neoplasm of the pancreas - No. 51 of 2018:
https://www.legislation.gov.au/Details/F2018L00565 
Statements of Principles to be revoked	
The AAT has been advised that the following Statements of Principles determined by the Repatriation Medical Authority will be revoked on 28 May 2018:
Electrical injury – No. 32 of 2009
https://www.legislation.gov.au/Details/F2009L01599 
Electrical injury – No. 31 of 2009
https://www.legislation.gov.au/Details/F2009L01598   
Herpes simplex – No. 4 of 2010
https://www.legislation.gov.au/Details/F2010L00010 
Herpes simplex – No. 3 of 2010
https://www.legislation.gov.au/Details/F2010L00006 
Cushing's syndrome – No. 34 of 2009
https://www.legislation.gov.au/Details/F2009L01601 
Cushing's syndrome – No. 34 of 2009 – No. 33 of 2009
https://www.legislation.gov.au/Details/F2009L01600 
Tension-type headache – No. 2 of 2010
https://www.legislation.gov.au/Details/F2010L00005 
Tension-type headache – No. 1 of 2010
https://www.legislation.gov.au/Details/F2010L00003

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