AAT Bulletin
Issue No. 31/2019                      5 August 2019
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, Small Business Taxation, 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. 
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Contents
AAT Recent Decisions
Citizenship
Compensation
Corporations
Migration
Practice and Procedure
Social Services
Taxation
Trade and Commerce
Veterans' Affairs
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, Small Business Taxation, 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
Dau and Minister for Home Affairs (Citizenship) [2019] AATA 2313 (30 July 2019), Senior Member A Poljak
CITIZENSHIP – Citizenship by conferral – residence requirements – whether the applicant had a close and continuing relationship with Australia – de facto partner of an Australian citizen – where applicant not overseas with Australia citizen de facto partner – where reasons why applicant outside Australian for a lengthy period of time not related to de facto relationship – decision affirmed
Ur Rehman and Minister for Home Affairs (Citizenship) [2019] AATA 2344 (1 August 2019), Senior Member C Puplick AM
CITIZENSHIP – application for citizenship by conferral – refusal – good character requirement – failure to disclose alleged wife and son in citizenship application – whether Applicant was obliged to disclose –   decision set aside and remitted
Compensation
Brideson by guardian Lynette Brideson and Australian Capital Territory (Compensation) [2019] AATA 2314 (31 July 2019), Deputy President G Humphries AO
WORKER’S COMPENSATION – accepted condition of post-traumatic stress disorder – whether a psychiatric assistance dog is a form of medical treatment or an aid for the purposes of the Act – whether the psychiatric assistance dog obtained at the direction of a legally qualified medical practitioner – whether the psychiatric assistance dog is reasonable to obtain – where Tribunal faced with uncertain and vague evidence as to the 
medical effects of the psychiatric assistance dog – psychiatric assistance dog is not medical treatment for purposes of the Act – whether psychiatric assistance dog is an aid under the Act – statutory construction – decision under review affirmed
Cartajena and Comcare (Compensation) [2019] AATA 2345 (25 July 2019), Mr A. Maryniak QC, Member
COMPENSATION - costs – multiple applications heard together – mixed results for Applicant – two decisions set aside – partial costs ordered in favour of the Applicant pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988
Evans and Military Rehabilitation and Compensation Commission (Veterans’ entitlements) [2019] AATA 2215 (10 July 2019), Mr W Frost, Member
PRACTICE AND PROCEDURE – compensation - application to dismiss on basis of no reasonable prospect of success – past award of common law damages - whether s 48(4) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 precluded claim for compensation – tribunal satisfied that there is no reasonable prospect of success – application for review dismissed
Naylor and Comcare (Compensation) [2019] AATA 2339 (1 August 2019), Dr P McDermott RFD, Deputy President
JURISDICTION - Section 57 Notice under the Safety Rehabilitation and Compensation Act 1988 (Cth) – Independent Medical Examination - Objection to Notice - Reasonable excuse – Suspension – Administrative Appeals Tribunal has no jurisdiction
Corporations
Ellis and Australian Securities & Investment Commission [2019] AATA 2346 (2 August 2019), Ms D K Grigg, Member
COMPANY NAMES – whether Ministerial consent should be given to use the word “trustee” in a company name – application of the Guidelines for Ministerial Consent to Body Corporate Names under the Corporations Act 2001 – whether the “applicant” under the Guidelines for Ministerial consent is the yet to be incorporated company or the proposed director – decision under review affirmed.
Migration
Boyce and Minister for Home Affairs (Migration) [2019] AATA 2218.(25 July 2019), Mr Theodore Tavoularis, Senior Member
MIGRATION – non revocation of mandatory cancellation of Class TY, Subclass 444 Special Category (Temporary) visa – where Applicant failed to pass the character test – sentenced to 12 months’ imprisonment or more – whether there is another reason to revoke the mandatory cancellation of the subject visa – application of Ministerial Direction No 79 – application of the Primary and Other Considerations in Part C of Ministerial Direction No 79 – not another reason to revoke the mandatory cancellation of the subject visa – Decision under review affirmed

HGBY and Minister for Immigration and Border Protection (Migration) [2019] AATA 2352 (2 August 2019), Deputy President P Britten-Jones
MIGRATION — Mandatory visa cancellation — Request for revocation — Failure to pass the character test — Substantial criminal record — Request for revocation refused — Appeal to Administrative Appeals Tribunal — Whether there are other reasons to revoke the visa cancellation — Protection of the Australian community — Dishonesty offences — Breaches of bail, intervention order and good behaviour bond — Driving offences — Domestic violence — Best interests of the children — Expectations of the Australian community — International non-refoulement obligations — Fears of harm — Strength, nature and duration of ties — Impact of non-revocation on family members who are Australian citizens —  Extent of impediments if removed — Migration Act 1958 (Cth), ss 501, 501CA — Revocation of mandatory visa cancellation
TRAN and Minister for Immigration and Border Protection (Migration) [2019] AATA 2338 (29 July 2019), Senior Member K Raif
MIGRATION – Class BC Subclass 100 Partner (Migrant) visa – mandatory cancellation – failure to pass the character test – criminal convictions – whether there is another reason why the original cancellation decision should be revoked pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 – Ministerial Direction No. 79 – primary considerations – protection of the Australian community – the best interests of minor children in Australia affected by the decision – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside and substituted
Umi and Minister for Home Affairs (Migration) [2019] AATA 2316 (31 July 2019), Senior Member A. Nikolic AM CSC
MIGRATION – visa cancellation – citizen of Samoa - failure to pass the character test – criminal history between 1999 and 2013 – convictions for multiple violent offences – considerations at Part C of the Ministerial Direction No. 79 applied – decision affirmed
Practice and Procedure
Australian National College Pty Ltd and Australian Skills Quality Authority [2019] AATA 2221 (3 July 2019), Ms Anna Burke AO, Member
PRACTICE AND PROCEDURE – application to Stay decision of Australian Skills Quality Authority – decision to reject renewal application as a registered training provider – decision to reject renewal application of CRICOS – whether prospects of success – consequences for Applicant – public interest – whether review would be rendered nugatory –– Stay application granted with conditions
Construction Industry Training Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 2219 (29 July 2019), Deputy President Boyle
PRACTICE AND PROCEDURE – application for stay of decision under s 41(2) of the Administrative Appeals Tribunal Act 1975 – relevant considerations – is prospects of success a relevant consideration? – consequences of not granting a stay – parties affected – is hearing rendered nugatory? – public interest – conditions attaching to stay – stay order to remain in place
Social Services
Abdulhussein and Secretary, Department of Social Services (Social services second review) [2019] AATA 2214 (29 July 2019), Deputy President The Hon. John Pascoe AC CVO
SOCIAL SECURITY – Newstart Allowance – Carer Payment – undeclared income – unexplained cash deposits - where applicant had not declared ownership of an investment property – whether property needed to be disclosed – whether constructive trust existed – decision set aside and remitted – decision affirmed
Chevell and Secretary, Department of Social Services (Social services second review) [2019] AATA 2342 (2 August 2019), Mrs J C Kelly, Senior Member
SOCIAL SECURITY –  whether Applicant was overpaid social security payment  – whether amount of debt overpaid is due to the Commonwealth – whether all or part of each or any of the debts can be waived or written off - Applicant was overpaid debt - overpayment not due solely to administrative error by the Commonwealth - debt recoverable at law – not satisfied that Applicant has no capacity to pay - Applicant's whereabouts are not unknown - not satisfied that it is not cost effective for the Commonwealth to take action to recover the debt - Applicant knowingly failed to comply with obligation to notify income  - discrepancy in total of debts assessed post hearing  - reviewable decision set aside and matter remitted for recalculation of debts
Dennis and Secretary, Department of Social Services (Social services second review) [2019] AATA 2347 (18 June 2019), Mr C Edwardes, Member
SOCIAL SECURITY – disability support pension – medical conditions – alcohol dependency – mental health – qualification period – Impairment Tables – not fully diagnosed, treated and stabilised – program of support – decision affirmed
Jones and Secretary, Department of Social Services (Social services second review) [2019] AATA 2343 (2 August 2019), Mrs J C Kelly, Senior Member
SOCIAL SECURITY –  whether Applicant was overpaid a debt – whether amount of debt overpaid is due to the Commonwealth – whether all or part of each or any of the debts can be waived or written off - Applicant was overpaid debt - overpayment not due to Commonwealth administrative  error - debt recoverable at law - not found that Applicant has no capacity to pay - Applicant's whereabouts are not unknown - not found that it is not cost effective for the Commonwealth to take action to recover the debt - Applicant knowingly failed to comply with obligation to notify income  - discrepancy in debt assessed post hearing  - reviewable decision set aside in part and remitted for recalculation
Miller; Secretary, Department of Social Services and (Social services second review) [2019] AATA 2315 (31 July 2019); Mr D Cremean, Senior Member
SOCIAL SECURITY – disability support pension – mental health conditions – whether fully diagnosed, treated and stabilised – whether impairment attracts rating of 20 points or more under the Impairment Tables – whether Respondent has a continuing inability to work – decision affirmed

Parley and Secretary, Department of Social Services (Social services second review) [2019] AATA 2216 (26 July 2019), Mr S Evans, Member
SOCIAL SECURITY – eligibility for disability support pension – lower back damage and sciatica nerve damage – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – applicant unable to satisfy the qualification criteria under s 94 of Social Security Act 1991 – decision under review affirmed
Vo and Secretary, Department of Social Services (Social services second review) [2019] AATA 2341 (2 August 2019), The Hon. R Baldwin, Member
SOCIAL SECURITY – whether applicant was a member of a couple at the relevant date – whether applicant is separated under one roof with former partner – whether there is a special reason why the applicant should not be treated as a member of a couple – decision affirmed
Taxation
Fitzmaurice and Commissioner of Taxation (Taxation) [2019] AATA 2217 (26 July 2019), Deputy President Mr P Britten-Jones
TAXATION — Superannuation — Self-managed Super Fund — Contravention of statutory imposed obligations by the responsible officer of the body corporate — Lending money to members — Breach of “sole purpose” test — Early release of benefits — Financial hardship — Late lodgement and failure to lodge annual returns — failure to maintain investments at “arm’s length” — Failing to keep up-to-date market valuation of the major asset of the fund — Failure to keep records — Superannuation Industry (Supervision) Act 1993 (Cth), ss 31, 35AE, 35B, 35C, 35D, 62, 65, 103, 104, 105, 109, and 126A — Decision affirmed.
Trade and Commerce
Good Earth Oils Pty Ltd and Australian Trade and Investment Commission [2019] AATA 2353 (2 August 2019), Deputy President J Sosso
TRADE AND COMMERCE – EXPORT MARKET GRANTS – whether the Applicant satisfies the prescribed eligibility criteria for a grant under the Export Market Development Grants Act 1997 – whether the Applicant’s business or a part of its business is similar to Energreen Nutrition Australia Pty Ltd, to such an extent that the Applicant’s business should be treated as a continuation of Energreen Nutrition Australia Pty Ltd – decision under review affirmed.

Veterans' Affairs
Cox and Repatriation Commission (Veterans' entitlements) [2019] AATA 2340 (1 August 2019), Dr M Evans, Senior Member
VETERANS’ ENTITLEMENTS – whether Applicant’s cryptococcal meningitis resulting in blindness is defence caused – whether depressive disorder is defence caused – no applicable Statement of Principles for cryptococcal meningitis – standard of proof – meaning of reasonable satisfaction – whether material before the Tribunal raises a connection on the balance of probabilities between the Applicant’s cryptococcal meningitis resulting in blindness and the Applicant’s defence service – whether a defence caused injury or disease pursuant to s 70(5)(d) of the Veterans’ Entitlements Act 1986 (Cth) – contributed to in a material degree - reasonable satisfaction standard - conflicting expert evidence – whether medical evidence affected by hindsight bias – procedural fairness issues arising from the timing of witnesses – 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, Small Business Taxation, 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	
None lodged		
Appeals finalised
CASE NAME	AAT reference	court Reference	
Child Support Registrar v MQMV	[2018] AATA 2924	[2019] FCA 1171	
Doan v Minister for Home Affairs	[2019] AATA 169	[2019] FCA 1172	
Minister for Home Affairs v YZXB	[2019] AATA 69 	[2019] FCA 1134	
Wang v Australian Securities and Investments Commission	[2018] AATA 1405 	[2019] FCA 1178	

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