AAT Bulletin
Issue No. 32/2019                      12 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. 
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
Aviation
Child Support
Citizenship
Compensation
Migration
Practice and Procedure
Professions and Trades
Refugee
Social Services
Taxation
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.
Aviation
Vranic and Civil Aviation Safety Authority [2019] AATA 2367 (2 August 2019); Senior Member R Cameron and Dr S Lewinsky, Member
CIVIL AVIATION – Medical standards 1 and 2 – Refusal to issue the Applicant with a Class 1 and Class 2 Medical Certificate – Applicant refuses to obtain psychiatric report – Reviewable decision affirmed
Child Support
KFSV and Child Support Registrar (Child support second review) [2019] AATA 2427 (6 August 2019); Senior Member C Puplick AM
CHILD SUPPORT – percentage of care – Federal Circuit Court consent orders – parenting agreement – child care arrangements – meaning of "actual care" – decision under review set aside
WQSX and Child Support Registrar (Child support second review) [2019] AATA 2373 (2 August 2019); The Hon. John Pascoe AC CVO, Deputy President
CHILD SUPPORT – review of decision of Social Services and Child Support Division – percentage of care – where father claimed the child lived entirely with him for the relevant period – contradictory documentary evidence – where mother had made a later notification of a change of care with Child Support Registrar – decision affirmed
Kenyon and Kenyon (Child support) [2019] AATA 1730 (1 May 2019); M Martellotta, Member
CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – court orders not complied with – interim period initially applied – decision under review affirmed
Vartanian and Solvej (Child support) [2019] AATA 1695 (8 May 2019); A Schiwy, Member
CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – benefits derived from business – real estate properties owned by family trust – decision under review set aside and substituted

Gomer and Farran (Child support) [2019] AATA 1698 (23 April 2019); J Longo, Member
CHILD SUPPORT – non-agency payment – prescribed payment of rent on former family home – whether discretion to refuse to credit an amount should be exercised – decision under review affirmed
Merton and Braden (Child support) [2019] AATA 1742 (30 April 2019); R Ellis, Senior Member
CHILD SUPPORT – acceptance of application for administrative assessment – whether application should have been accepted – parties living together in a de facto relationship at the time of application – decision under review set aside and substituted
Brigham and Child Support Registrar (Child support) [2019] AATA 1688 (30 April 2019); J Thomson, Member
CHILD SUPPORT – refusal of extension of time to object – applicant did not rest on their rights – no merit to substantive issue – decision affirmed
Citizenship
El Mobayed and Minister for Home Affairs (Citizenship) [2019] AATA 2447 (7 August 2019); Emeritus Professor PA Fairall, Senior Member
CITIZENSHIP – application for citizenship by conferral – permanent or enduring physical or mental incapacity – whether applicant suffered from permanent or enduring physical or mental incapacity – whether applicant not capable of demonstrating a basic knowledge of the English language – consideration of medical evidence – whether grounds for excluding certain medical evidence under the Citizenship Policy – where applicant suffering from an enduring mental incapacity meaning that he was not capable of a basic understanding of the English language at that time – decision set aside and remitted
Khan and Minister for Home Affairs (Citizenship) [2019] AATA 2364 (30 July 2019); Deputy President Boyle and Mr S Barton, Member
CITIZENSHIP – refusal of application for Australian citizenship by conferral – general residence requirement – Australian citizen – application of Ministerial discretion – spouse or de facto partner – reviewable decision affirmed
Sriskandarajah and Minister for Home Affairs (Citizenship) [2019] AATA 2374 (6 August 2019); Mr R Maguire, Member
CITIZENSHIP – citizenship application refusal – good character – providing false or misleading information – applicant did not disclose previous passport and National ID Card – decision under review affirmed

Compensation
Ascic and Comcare (Compensation) [2019] AATA 2476 (9 August 2019); Dr M Evans, Senior Member
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – psychological injury – depression – acute paranoid reaction to perceived stress in employment – permanent impairment – whether impairment became permanent prior to 1 December 1988 – Compensation (Commonwealth Government Employees) Act 1971 did not provide for the payment of lump sum compensation for psychological conditions – whether there has been a new impairment suffered on or after 1 December 1988 – decision under review affirmed
Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450 (8 August 2019); Deputy President J Sosso	
COMPENSATION – ailment – major depression – whether claimed condition significantly contributed to, to a significant degree, by the Applicant’s employment – presence of employment and non-employment factors – whether Respondent exposed to unacceptable degree of prejudice in relation to how the Applicant’s claim was particularised and the delay involved – requirements of s 53 of the Act considered – requirements of s 53 of the Act are met – decision under review set aside and substituted
PRACTICE AND PROCEDURE – nature of the Tribunal’s practice in workers’ compensation matters – scope of inquisitorial nature – whether Respondent was “surprised” or “ambushed” at the Hearing
Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430 (6 August 2019); Deputy President J Sosso
COMPENSATION – accepted injury of lumbar strain – whether the accepted condition has resolved – Respondent no longer liable in respect of medical expenses under s 16 or for injury resulting in incapacity under s 19 – Applicant not suffering from a work-related annular tear – Applicant not suffering from WPI of 10% or more and not liable to pay compensation for permanent impairment under ss 24 and 27 – Applicant not suffering from a work-related disease pursuant to s 5B – decisions under review affirmed
Swindale and Comcare (Compensation) [2019] AATA 2426 (7 August 2019); Deputy President RI Hanger AM QC
COMPENSATION – Whether Comcare is liable to pay compensation – whether Comcare is liable for a claimed psychological condition - massage treatment – anti-depressants as treatment for a back condition – where psychological condition diagnosed significantly after accident – decision under review affirmed
TMPR and Comcare (Compensation) [2019] AATA 2451 (8 August 2019); Senior Member L Kirk
WORKERS’ COMPENSATION – psychological injury - whether the Applicant continues to suffer the effects of an accepted condition – whether the accepted condition continues to be contributed to in a material degree by the work-related event – whether liability exists to pay compensation for medical expenses and incapacity for work having regard to the statutory test relevant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 – decision under review set aside and remitted
Migration
Davey and Minister for Home Affairs (Migration) [2019] AATA 2371 (6 August 2019); Mr A Maryniak QC, Member
MIGRATION – visa refusal on character grounds – whether the Applicant passes the character test – more than minimal or remote chance the Applicant will reoffend – the Applicant does not pass the character test – whether the visa application should be refused – weighing of primary and other considerations – decision set aside and remitted with direction	
Galuvao and Minister for Home Affairs (Migration) [2019] AATA 2425 (22 July 2019); Senior Member M Griffin QC
MIGRATION – mandatory cancellation of visa – failure to pass character test – substantial criminal record – whether the discretion to revoke the cancellation should be exercised – Ministerial Direction No. 79 – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of the Australian Community – other considerations – strength, nature and duration of ties – impediments to removal – dangerous driving occasioning death – dangerous driving occasioning grievous bodily harm – set aside and substituted
Lansdowne and Minister for Home Affairs (Migration) [2019] AATA 2448 (7 August 2019); Mr T Eteuati, Member
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – Applicant does not pass character test – whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked – consideration and application of Ministerial Direction No 79 – decision under review affirmed
Mahmood (Migration) [2019] AATA 1796 (23 May 2019); K Raif, Senior Member
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – risk to safety of Australian community or individual – charged with possession of child abuse material – pleaded guilty – risk of further offending exists – consideration of discretion – very serious offence – purpose of visa not fulfilled – decision under review affirmed
Sharma (Migration) [2019] AATA 1716 (23 May 2019); S Witts, Member
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – mental health issues – responsibility of visa holder – significant breach – decision under review affirmed
Zhou (Migration) [2019] AATA 1971 (24 May 2019); R Gagliardi, Member
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – health requirement – free from certain disease or condition – member of family unit – “one fails, all fail” – timing of divorce – reasons for marriage breakdown not convincing – contrived to circumvent health requirement – decision under review affirmed

Lin (Migration) [2019] AATA 1974 (24 May 2019); J Owen, Senior Member
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – capacity to participate in hearing – dementia – support from daughter increasingly unsustainable – assistance reasonably obtained from welfare, nursing or community services – language barriers – TeoChow dialect – cultural needs – personal preferences – fear of ‘strangers’ in the home – comprehensive ACAT assessment not undertaken – 24-hour care – Home Care package – unique or exceptional circumstances – Ministerial Intervention requested – decision under review affirmed
Xiao (Migration) [2019] AATA 1640 (24 May 2019); M Ison, Senior Member
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – genuine position – Customer Service Manager – genuine business – sponsor's business has no physical office space – not entitled to appear before the Tribunal – consideration of discretion – purpose of visa grant – decision under review affirmed
Practice and Procedure
DVFW and Comcare (Compensation) [2019] AATA 2376 (8 July 2019); Mrs JC Kelly, Senior Member
Summons for production of documents – objection to production – application of s 10(D) of the Family Law Act 1975 – admissibility of evidence arising from family counselling in Tribunal proceedings – documents relevant to proceedings on the face – objection to production disallowed
Nicolson and Minister for Finance [2019] AATA 2363 (5 August 2019); Senior Member BJ Illingworth
PRACTICE AND PROCEDURE – application for extension of time to lodge an application for review – explanation for delay – prospects of success – prejudice to respondent – extension of time granted
Professions and Trades
Coogan and Tax Practitioners Board [2019] AATA 2432 (6 August 2019); Senior Member A Poljak
TAX AGENT REGISTRATION – application for a stay of the decision under review – termination of applicant's registration as a tax agent – failure to comply with taxation laws – interim stay order in operation – prospects of success – consequences to the applicant – the public interest – consequences for the respondent in carrying out its functions – whether the review would be rendered nugatory if a stay were not granted – stay application refused – interim stay discharged
Refugee
1604816 (Refugee) [2019] AATA 2351 (29 April 2019); R Shanahan, Member
REFUGEE – protection visa – Iran – religion – agnosticism – interest in Baha’i faith – claimed Christian conversion – imputed political opinion – attendance at political rallies in Australia – credibility issues – sole purpose of strengthening refugee claim – particular social group – failed asylum seekers from the West – discrimination against women in general – decision under review affirmed

1608734 (Refugee) [2019] AATA 2312 (9 May 2019); T Flood, Member
REFUGEE – protection visa – Pakistan – religion – Shia Muslim – race – Pashtun Turi – political opinion – anti-Taliban – Sunni extremists – community volunteer – educated – profession – real chance of harm extends to entire country – decision under review remitted
1906210 (Refugee) [2019] AATA 2123 (3 June 2019); M Hawkins, Member
REFUGEE – protection visa – Congo – application for visa invalid – no decision on merits of visa – not a reviewable decision – not a valid application – no jurisdiction to recommend ministerial intervention – decision under review set aside – decision under review substituted
1607505 (Refugee) [2019] AATA 1446 (11 June 2019); T Flood, Member
REFUGEE – protection visa – Pakistan – political opinion – Muttahida Qaumi Movement (MQM) – affiliation to MQM London – particular social group – single women – family’s links to the Altaf group – applicants' level of involvement in MQM activities – claimed past harm by military and para-military groups – extortion attempts on business – no real chance of serious harm – means to subsist – decision under review affirmed
1610842 (Refugee) [2019] AATA 1418 (12 June 2019); P Hunter, Member
REFUGEE – protection visa – Mauritius – particular social group – mentally ill people in Mauritius – availability of mental health facilities – free access – does not amount to systematic and discriminatory conduct – standard of mental health services – Brown-Sequard Hospital – previous experience – subjective fear of re-admission – does not constitute serious harm – concerted effort to seek treatment – family support – employment prospects in Mauritius – economic prosperity – decision under review affirmed
Social Services
Apostolides and Secretary, Department of Social Services (Social services second review) [2019] AATA 2375 (2 August 2019); Mr IF Thompson, Member
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – requirements of a program of support – whether continuing inability to work – decision affirmed
Bourke and Secretary, Department of Social Services (Social services second review) [2019] AATA 2365 (5 August 2019); Ms Anna Burke AO, Member
SOCIAL SECURITY – application for disability support pension – whether qualified – from cervical degeneration, bilateral hip condition, bowel cancer, chronic major depressive disorder, and hypothyroidism – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted

Burgess and Secretary, Department of Social Services (Social services second review) [2019] AATA 2429 (7 August 2019); Dr I Alexander, Senior Member
SOCIAL SECURITY – disability support pension cancellation – rejection of carer payment – lump sum compensation for workplace injury – whether a lump sum preclusion period applies – length of preclusion period – reduction of preclusion period for special circumstances – payments treated as though not having been made – whether special circumstances apply – untreated diagnosis of pathological gambling – whether gambling was a lifestyle choice – decision set aside and substituted
Flenady and Secretary, Department of Social Services (Social services second review) [2019] AATA 2478 (9 August 2019); Ms DK Grigg, Member
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the relevant period – whether continuing inability to work – decision under review affirmed
Frese and Secretary, Department of Social Services (Social services second review) [2019] AATA 2474 (9 August 2019); Dr I Alexander, Senior Member
SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether condition fully diagnosed, treated, stabilised and likely to persist for more than two years – whether impairment attracts 20 points or more under the Impairment Tables – decision affirmed
McDonnell and Secretary, Department of Social Services (Social services second review) [2019] AATA 2477 (9 August 2019); Ms D Mitchell, Member
SOCIAL SECURITY – Family Tax Benefit – overpayment – where no administrative error – where no special circumstances – decision under review affirmed
Pearson and Secretary, Department of Social Services (Social services second review) [2019] AATA 2475 (9 August 2019); The Hon. John Pascoe AC CVO, Deputy President
SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether condition fully diagnosed, treated, stabilised – whether impairment attracts 20 points or more under the Impairment Tables – decision affirmed
Townsend and Secretary, Department of Social Services (Social services second review) [2019] AATA 2449 (8 August 2019); Ms D Mitchell, Member
SOCIAL SECURITY – disability support pension cancellation – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables at the date of cancellation – decision under review affirmed
Taxation
Biswas and Commissioner of Taxation (Taxation) [2019] AATA 2372 (5 August 2019); Senior Member Ehrlich QC
INCOME TAX – application for review of an objection decision – taxable income during the tax year ended 30 June 2017 – lump sum payment in arrears for underpaid wages – lump sum assessed as taxable income – where Applicant qualified for a tax rebate – whether Applicant was also eligible or entitled for medicare levy rebate or other relief in that income year – decision affirmed
QTWG and Commissioner of Taxation (Taxation) [2019] AATA 2428 (24 July 2019); Deputy President SA Forgie
TAXATION – application for review of an objection decision – whether Commissioner had power to amend assessments – whether assessments excessive – whether assessment of administrative penalty amounts excessive – whether applicant has discharged burden – decision remitted in part and otherwise 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	
Hopkins and Minister for Home Affairs	[2019] AATA 1393	
WRMF and National Disability Insurance Agency	[2019] AATA 1771	
Appeals finalised
CASE NAME	AAT reference	court Reference	
Comcare v Banerji	[2018] AATA 892	[2019] HCA 23	
Hunt v Repatriation Commission	[2018] AATA 1110	[2019] FCA 1191	
Kassem v Minister for Home Affairs	[2018] AATA 4383	[2019] FCA 1196	
Lochtenberg v Commissioner of Taxation	[2018] AATA 4667	[2019] FCA 1167	
Victorian Building Authority v Andriotis	[2017] AATA 378	[2018] FCAFC 24
[2019] HCA 22	
Zyaran v Minister for Home Affairs & Anor	[2018] AATA 3785	[2019] FCA 1205	

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