AAT Bulletin
Issue No. 26/2018			   9 July 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
Corporations
Migration
Practice and Procedure
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.
Citizenship
BZKP and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1828 (29 March 2018); Senior Member Britten-Jones
IMMIGRATION AND CITIZENSHIP – Application for review of decision to refuse to grant application for citizenship – Whether applicant of good character – In November 2018 Delegate for the Minister for Immigration and Citizenship granted applicant a protection visa, being a permanent visa – Whether applicant met requirements of section 22(2)(h) of the Australian Citizenship Act 2007 – Assessing character for purposes of Citizenship Act as per Citizenship Policy 2016 – Decision set aside
Compensation
Bhat and Comcare (Compensation) [2018] AATA 2094 (5 July 2018); Senior Member A Poljak
COMPENSATION – workers compensation – chronic back pain – section 16 claim –physiotherapy treatment – treatment provides temporary alleviation not permanent improvement – no other medical treatment recommended – section 19 claim – incapacity for work – applicant fit for normal work duties – decisions under review affirmed
Gregory and Comcare (Compensation) [2018] AATA 2075 (3 July 2018); Ms S Taglieri SC, Member and Dr R Walters, Member
COMPENSATION – liability for previously accepted injury – entitlement to medical expenses and incapacity payments – whether effects of compensable injury are continuing – whether incapacity and treatment results from the compensable injury – disc prolapse and degenerative changes in lumbar spine – decision under review set aside and remitted
Mozsny and Comcare (Compensation) [2018] AATA 1966 (4 June 2018); Deputy President JW Constance
COMPENSATION – injury arising out of or in the course of employment – injury to left knee – weekend social function – decision affirmed
Ofori and Comcare (Compensation) [2018] AATA 2113 (5 July 2018); M Hyman, Member
WORKERS’ COMPENSATION – pain in the left foot – diagnosis of the foot condition uncertain – whether an injury (other than a disease) or an ailment – whether liability excluded because of a wilfully false representation – whether contributed to by employment to a significant degree – decision under review affirmed
Corporations
The Sharemarket College Pty Ltd and Australian Securities and Investments Commission [2018] AATA 1969 (28 June 2018); Deputy President BJ McCabe
CORPORATIONS – cancellation of Australian Financial Services Licence – whether breaches of conditions of Australian Financial Services Licence – banning order from providing financial services – breaches of financial services laws –  telemarketing – email marketing – where systemic failures in compliance regime – ill-health mitigating factor
Migration
Andrwas and Minister for Home Affairs (Migration) [2018] AATA 1965 (2 July 2018); Senior Member A Poljak
IMMIGRATION – visa cancellation – character grounds – substantial criminal record – fraud and dishonesty – cancellation decision not revoked – whether another reason cancellation should be revoked – decision affirmed
Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 (4 July 2018); Senior Member R Cameron
MIGRATION - application for revocation of mandatory cancellation of visa – where applicant fails character test - where applicant warned visa may be cancelled – drug related offences – risk of harm if applicant re-offends - unacceptable risk of applicant reoffending - where Australian community would expect non-revocation - decision affirmed
Lam and Minister for Home Affairs (Migration) [2018] AATA 2005 (2 July 2018); Ms A Burke, Member
MIGRATION –– Vietnamese citizen – non-revocation of mandatory cancellation of visa – 12 month term of imprisonment – applicant does not pass character test in s 501(6)(a) – applicant an unacceptable risk to the Australian community – strong ties to Australia – impediments if applicant removed – decision under review affirmed
Lim and Minister for Home Affairs (Migration) [2018] AATA 2111 (5 July 2018); Deputy President J W Constance and Dr L Bygrave, Member
MIGRATION – application for a Bridging E visa – whether the applicant is of good character – whether discretion should be exercised to revoke the refusal of the visa – Ministerial Direction No 65 – protection of the Australian community – nature and seriousness of conduct – risk to Australian community should the applicant commit further offences or engage in other serious conduct – expectations of the Australian community – Interpol red notice – allegations of fraud – whether applicant intends to stay in Australia – decision affirmed

QSBL and Minister for Home Affairs (Migration) [2018] AATA 2074 (2 July 2018); Dr M Evans, Senior Member
Migration – decision not to revoke mandatory cancellation of visa – two-day rule – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – international non-refoulement obligations – protection of the Australian community – best interests of minor children – step-children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – extent of impediments if returned to Sudan – mental health – decision under review affirmed
RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076 (3 July 2018); K Parker, Member
MIGRATION – application for revocation of mandatory cancellation of visa – applicant held special category visa under s 32 of Migration Act 1958 (Cth) – whether applicant also held absorbed person visa under s 34 of the Act – effect of s 501F of the Act – whether applicant passes character test – whether another reason to revoke decision to cancel visa – extensive history of criminal offending resulting in imprisonment – offences predominately property crimes and did not involve violence – repetition of criminal offending – whether applicant’s offences and conduct were serious – consideration of mitigating circumstances – applicant suffered from multiple mental health conditions and heroin addiction – applicant was homeless in Australia for significant periods – applicant suffered abuse as a child – where Australian community would expect non-revocation – applicant has been a long-term resident in Australia since the age of five – applicant’s current de facto partner is an Australian citizen and lives in Australia – de facto partner committed to providing a stable home for the applicant – other family members resident in Australia – applicant received three formal written warnings that his visa may be cancelled – unacceptable risk of applicant reoffending – applicant may find it difficult to establish a new life in New Zealand – whether applicant likely to suffer harm that would trigger international non-refoulement obligations - decision affirmed
PRACTICE AND PROCEDURE – requirements of s 500(6J) of the Migration Act 1958 – further documentary submission made by self-represented applicant after hearing concluded – meaning of “holds a hearing” – whether to re-open case to receive further submission
Sharma and Minister for Immigration and Border Protection (Migration) [2018] AATA 2110 (5 July 2018); Dr D Cremean, Senior Member
MIGRATION – visa cancellation — offences against child — plea of guilty — character test — best interests of minor children — community expectations — decision set aside
Shin and Minister for Home Affairs (Migration) [2018] AATA 2108 (5 July 2018); Deputy President J W Constance and Dr L Bygrave, Member
MIGRATION – application for a Bridging E visa – whether the applicant is of good character – whether discretion should be exercised to revoke the refusal of the visa – Ministerial Direction No 65 – protection of the Australian community – nature and seriousness of conduct – risk to Australian community should the applicant commit further offences or engage in other serious conduct – expectations of the Australian community – Interpol red notice – allegations of fraud – whether applicant intends to stay in Australia – decision affirmed

Staveley and Minister for Home Affairs (Migration) [2018] AATA 2096 (4 July 2018); L M Gallagher, Member
IMMIGRATION – Class TY Subclass 444 (temporary) visa – non-revocation of mandatory cancellation of visa – applicant did not pass character test and had served term of imprisonment – visa mandatorily cancelled under subsection 501(3A) Migration Act 1958 (Cth) – whether discretion in subsection 501CA(4) to revoke mandatory visa cancellation should be exercised  – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should further offences be committed – best interests of minor children - expectations of the Australian community  - other relevant considerations – impact on victims - strength, nature and duration of ties to Australia – extent of impediments if removed from Australia -  discretion should not be exercised to revoke visa cancellation - decision under review affirmed
Tran and Minister for Immigration and Border Protection (Migration) [2018] AATA 2093 (28 June 2018); Senior Member A Younes
MIGRATION - Class BC Subclass 100 Partner (Migrant) Visa - mandatory cancellation - non-revocation - failure to pass the character test - Ministerial Direction 65 - serious criminal convictions - protection of the Australian community - best interests of minor children - expectations of the Australian community - international non-refoulement obligations - strength nature and duration of ties - impact on victims - extent of impediments if removed - decision affirmed
Practice and Procedure
Bringolf and Secretary, Department of Human Services (Freedom of information) [2018] AATA 2004 (28 June 2018); Senior Member A. Nikolic AM CSC
PRACTICE AND PROCEDURE –  dismissal of application for review – whether Tribunal satisfied that application is an abuse of process – appropriate to exercise discretion to dismiss application pursuant to section 42B(1)(c) of AAT Act
FFVQ and National Disability Insurance Agency [2018] AATA 1968 (2 July 2018); Deputy President G Humphries
National Disability Insurance Scheme – Jurisdiction – Statement of supports is not to be conflated with a plan – Plan is not a decision to which the relevant proceeding relates – Tribunal lacks jurisdiction to stay the operation of the National Disability Support Agency’s plan
Jetstar Airways Pty Ltd and Civil Aviation Safety Authority (Freedom of information) [2018] AATA 2097 (5 July 2018); Deputy President B W Rayment
Freedom of Information – request to access interim documents under the Freedom of Information Act by affected third party – argued that documents are exempt documents under the Freedom of Information Act – access granted for transparency and expediency of proceedings
Mantra Training and Development Pty Ltd and Australian Skills Quality Authority [2018] AATA 1967 (29 June 2018); M Hyman, Member
PRACTICE AND PROCEDURE – extension of time – principles governing grant or refusal – explanation of delay – where the applicant had lodged an application to the tribunal but withdrawn it – availability of internal review by ASQA – opaque and misleading documentation – underlying merits of the application – prejudice to applicant and respondent – extension of time granted
Mulla Zahi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1833 (23 May 2018); Dr L Bygrave, Member
CITIZENSHIP – application for extension of time to lodge application for review of decision by Minister to refuse application for Australian citizenship – reasonable reason for delay – Tribunal must consider merits of the substantive application – Applicant failed citizenship test multiple times - limited prospects of success for substantive application – application for extension of time refused
Oliver and Comcare (Compensation) [2018] AATA 1964 (29 June 2018); Deputy President G Humphries
PRACTICE AND PROCEDURE – s 42B of the Administrative Appeals Tribunal Act 1975 – dismissal of proceedings if there are no reasonable prospects of success – Tribunal entitled to assess the strength of case based on material before it – Tribunal not satisfied that the Applicant has evidence of sufficient quality and weight to succeed at a hearing – Application dismissed
PRACTICE AND PROCEDURE – release from an implied undertaking
Rahimi and Secretary, Department of Social Services (Social services second review) [2018] AATA 2109 (5 July 2018); Senior Member B J Illingworth
PRACTICE AND PROCEDURE – Application for extension of time – Application for Disability Support Pension – Consideration of principles which apply to extensions of time – Extent of delay – Whether there is a persuasive explanation for the delay – Whether Applicant rested on his rights – Whether there is merit in substantive application – Extension of time refused
Social Security
Di Fiore and Secretary, Department of Social Services (Social services second review) [2018] AATA 2090 (4 July 2018); Mrs J C Kelly, Senior Member
SOCIAL SECURITY – disability support pension – unlimited portability – whether applicant has a severe impairment –intellectual disability – whether applicant will have severe impairment for at least the next five years – whether severe impairment would prevent applicant from performing any work independently of a program of support within the next five years – decision affirmed
Eyit and Secretary, Department of Social Services (Social services second review) [2018] AATA 2091 (4 July 2018); Dr B Ng, Member
SOCIAL SECURITY – disability support pension – impairment tables – insufficient points under tables – decision affirmed
Hosseini and Secretary, Department of Social Services (Social services second review) [2018] AATA 1840 (18 May 2018); G Hallwood, Member
Social Security – Carer payment – Requirement of “constant care” – Decision affirmed
Mongta and Secretary, Department of Social Services (Social services second review) [2018] AATA 2092 (4 July 2018); Ms A Burke, Member
SOCIAL SECURITY – disability support pension –– whether qualified – spinal and mental health conditions – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision set aside
MZNK and Secretary, Department of Social Services (Social services second review) [2018] AATA 2003 (2 July 2018); Dr I Alexander, Member
Social Security – Centrelink – Parenting payment debt – Austudy payment debt – Whether there is any basis in law to write off or waive the Applicant’s Centrelink debt – Whether a proportion of the Applicant’s Centrelink debt can be attributed to administrative error by Centrelink – Severe financial hardship – Special circumstances – Administrative error – Decision under review remitted for reconsideration
Sullivan and Secretary, Department of Social Services (Social services second review) [2018] AATA 1963 (29 June 2018); Senior Member N A Manetta and A Ward, Member
SOCIAL SECURITY - age pension - whether applicant meets the age pension eligibility requirements - whether applicant resident in Australia when he lodged his application for a pension - decision under review affirmed
Teleahiva and Secretary, Department of Social Services (Social services second review) [2018] AATA 2107 (6 July 2018); Senior Member C Puplick AM
Social Security – Disability Support Pension – Whether the Applicant is entitled to any back-payments of Disability Support Pension – Impairment Tables – Moderate mental health functional impairment – Fully diagnosed and fully treated – Fully stabilised – Decision under review is affirmed
Terry and Secretary, Department of Social Services (Social services second review) [2018] AATA 2112 (6 July 2018); Senior Member P Clauson
SOCIAL SECURITY – Disability Support Pension – Cancellation – Upper Limb condition – Spinal condition – psoriasis condition - whether impairments are of 20 points of more under the Impairment Tables – Applicant has a continuing inability to work – decision under review affirmed
Taxation
Rus and Commissioner of Taxation (Taxation) [2018] AATA 1854 (14 May 2018); Deputy President FD O’Loughlin and Senior Member L Hespe
CGT small business concessions - active asset - whether the whole of a parcel of land of which only a minor proportion is used in a business is an active asset - ability of Tribunal to rely upon further facts - whether mortgaging such land to secure borrowings used in a business is use of an asset in a business – decision affirmed
Veterans' Affairs
Henriksen and Repatriation Commission (Veterans' entitlements) [2018] AATA 2002 (3 July 2018); Dr P McDermott RFD, Deputy President
VETERANS’ AFFAIRS – claim for an increase in disability pension – claim for defence-caused condition of cervical spondylosis – standard of proof s 120(4) of the Act – relevant Statement of Principles – diagnosis of cervical spondylosis accepted – clinical onset of cervical spondylosis not within 25 years of trauma – heavy lifting of 120,000 kilograms did not occur in the ten year period before the clinical onset – 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	
Shi and Secretary, Department of Social Services	[2018] AATA 1627	
Appeals finalised
CASE NAME	AAT reference	court Reference	
Hutchison v Australian Securities and Investments Commission 	[2018] AATA 760	[2018] FCA 1002	
Rodchompoo v Minister for Immigration and Border Protection 	[2016] AATA 872	[2018] FCA 965	

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, which take effect from 23 July 2018:
Bipolar disorder (Balance of Probabilities) – No. 54 of 2018
https://www.legislation.gov.au/Details/F2018L00869 
Bipolar disorder (Reasonable Hypothesis) – No. 53 of 2018
https://www.legislation.gov.au/Details/F2018L00867 
Cluster headache (Balance of Probabilities) – No. 58 of 2018
https://www.legislation.gov.au/Details/F2018L00903 
Cluster headache (Reasonable Hypothesis) – No. 57 of 2018
https://www.legislation.gov.au/Details/F2018L00902 
Knee bursitis (Balance of Probabilities) – No. 66 of 2018
https://www.legislation.gov.au/Details/F2018L00882 
Knee bursitis (Reasonable Hypothesis) – No. 65 of 2018 
https://www.legislation.gov.au/Details/F2018L00872 
Localised sclerosis (Balance of Probabilities) – No. 62 of 2018
https://www.legislation.gov.au/Details/F2018L00884
Localised sclerosis (Reasonable Hypothesis) – No. 61 of 2018
https://www.legislation.gov.au/Details/F2018L00883 
Macular degeneration (Balance of Probabilities) – No. 60 of 2018
https://www.legislation.gov.au/Details/F2018L00886 
Macular degeneration (Reasonable Hypothesis) – No. 59 of 208
https://www.legislation.gov.au/Details/F2018L00885 
Olecranon bursitis (Balance of Probabilities) – No. 64 of 2018
https://www.legislation.gov.au/Details/F2018L00855 

Olecranon bursitis (Reasonable Hypothesis) – No. 63 of 2018
https://www.legislation.gov.au/Details/F2018L00854 
Panic disorder (Balance of Probabilities) – No. 56 of 2018
https://www.legislation.gov.au/Details/F2018L00931 
Panic disorder (Reasonable Hypothesis) – No. 55 of 2018
https://www.legislation.gov.au/Details/F2018L00929 
Amended Statements of Principles
The AAT has been advised that the Repatriation Medical Authority has made amendments to the following Statements of Principles. The amendments take effect on 23 July 2018: 
Lumbar spondylosis – No. 67 of 2018
https://www.legislation.gov.au/Details/F2018L00856
Lumbar spondylosis – No. 68 of 2018
https://www.legislation.gov.au/Details/F2018L00857 
Thoracic spongylosis – No. 69 of 2018
https://www.legislation.gov.au/Details/F2018L00913
Thoracic spongylosis – No. 70 of 2018
https://www.legislation.gov.au/Details/F2018L00915 
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 23 July 2018:
Bipolar disorder – No. 28 of 2009 
https://www.legislation.gov.au/Details/F2009L01595 
Bipolar disorder – No. 27 of 2009 
https://www.legislation.gov.au/Details/F2009L01594 
Cluster headache – No. 21 of 2010
https://www.legislation.gov.au/Details/F2010L01037 
Cluster headache – No. 20 of 2010
https://www.legislation.gov.au/Details/F2010L01036 
Localised sclerosis – No. 67 of 2009
https://www.legislation.gov.au/Details/F2009L03230 
Localised sclerosis – No. 66 of 2009
https://www.legislation.gov.au/Details/F2009L03229 
Macular degeneration – No. 14 of 2009
https://www.legislation.gov.au/Details/F2009L01581 
Macular degeneration – No. 13 of 2009
https://www.legislation.gov.au/Details/F2012C00634 
Panic disorder – No. 69 of 2009
https://www.legislation.gov.au/Details/F2016C00976 
Panic disorder – No. 68 of 2009
https://www.legislation.gov.au/Details/F2016C00975 

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