AAT Bulletin
Issue No. 34/2018	 3 September 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. 
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Contents
AAT Recent Decisions
Citizenship
Compensation
Corporations
Migration
National Disability Insurance Scheme
Practice and Procedure
Social Security
Taxation
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, 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
NXYD and Minister for Home Affairs (Citizenship) [2018] AATA 3144 (30 August 2018); Senior Member K Raif
CITIZENSHIP – refusal of application for citizenship by conferral – applicant failed to meet the general residence requirement under the Australian Citizenship Act 2007 – not present in Australia for the period of 4 years immediately before the day the application was made – absence for a period of more than 12 months – special residency requirement not met – defence service requirement not met – other claims – decision affirmed
ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3045 (17 August 2018); Member C Edwardes
Myanmar refugees - applications for citizenship refused – prohibition to approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person - whether Tribunal satisfied of identity of Applicants – decision affirmed 
Compensation
Harris and Comcare (Compensation) [2018] AATA 3095 (27 August 2018); M Hyman, Member
COMPENSATION – school Business Manager – relations with new Principal - psychological condition – scope of the claim – whether contributed to, to a significant degree, by employment – whether contributing events were reasonable administrative action taken in a reasonable manner – whether direction to return to school fell within the scope of the claim – whether exacerbation of symptoms constituted an aggravation – decision affirmed
King and Comcare (Compensation) [2018] AATA 3042 (24 August 2018); Senior Member A Poljak
COMPENSATION – accepted claim for workers compensation – section 16 entitlement – remedial massage – whether medical treatment – whether reasonable to obtain in the circumstances – treatment provides temporary alleviation not permanent improvement – applicant dependent on the treatment – decision under review affirmed
Stitt and Comcare (Compensation) [2018] AATA 3092 (24 August 2018); Deputy President S Boyle
COMPENSATION – medical treatment – treatment which was reasonable for the Applicant to obtain in the circumstances – whether physiotherapy is reasonable treatment in the circumstances – decisions under review are affirmed
Corporations
Tindall and Australian Securities and Investments Commission [2018] AATA 3101 (29 August 2018); Deputy President B J McCabe
CORPORATIONS – banning order from providing financial services for five years – contravention of financial services law – whether conduct misleading or deceptive – whether conduct dishonest – whether length of banning order is appropriate – decision under review affirmed
Migration
CNNS and Minister for Home Affairs (Migration) [2018] AATA 3043 (9 August 2018); K Millar, Member
MIGRATION – Mandatory visa cancellation– Global Special Humanitarian (Subclass 202) visa –- Failure to pass character test – Substantial criminal record – Applicant sentenced to 12 months or more imprisonment – Whether there is another reason why mandatory visa cancellation should be revoked – Consideration of principles under Ministerial Direction 65 – Primary and other considerations – Decision under review set aside and substituted
Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037 (24 August 2018); Senior Member C Puplick AM
MIGRATION – mandatory visa cancellation – character test – discretion to revoke mandatory visa cancellation – substantial criminal record – multiple sentences of imprisonment – repeated breaches of bond, bail and community service orders – repeated breaches of regulations in prison and immigration detention – drug and alcohol misuse – failure to participate in rehabilitative programmes – protection of the Australian community – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision affirmed
Tenari and Minister for Home Affairs (Migration) [2018] AATA 3036 (15 June 2018); Senior Member T Tavoularis
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – where visa was cancelled under s 501(3A) because Applicant did not pass the character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – where Applicant had committed a number of domestic violence offences – decision under review affirmed
ZPWB and Minister for Home Affairs (Migration) [2018] AATA 3097 (29 August 2018); Deputy President P Britten-Jones
MIGRATION — Application for Bridging E (Class WE) visa — Visa refusal — Character test — Consideration of past and present criminal conduct — Consideration of past and present general conduct — Whether there is a risk the Applicant would engage in criminal conduct if allowed to remain in Australia — Offences — Unlawful assault — Domestic violence — Applicant fails the character test — Consideration of whether the discretion to refuse to grant the visa should be exercised — Consideration of primary considerations — Protection of Australian community — Expectations of Australian community — Consideration of other considerations — Decision under review affirmed
National Disability Insurance Scheme
Mazy and National Disability Insurance Agency [2018] AATA 3099 (9 August 2018); Deputy President J W Constance
NATIONAL DISABILITY INSURANCE SCHEME - whether support is reasonable and necessary - whether cost of support is reasonable - whether support is most appropriately funded or provided through the National Disability Insurance Scheme - whether administering insulin to Applicant falls under the Scheme - non-verbal - intellectual disability - blind - hearing impaired - decision set aside
Practice and Procedure
KPTT and Commissioner of Taxation (Taxation) [2018] AATA 3146 (27 July 2018); Mr P W Taylor SC, Senior Member
PRACTICE AND PROCEDURE - lodging of documents with the Tribunal - application for an order that the respondent lodge additional material - redacted documents - claim that the redacted material may be relevant to the decision under review - section 37 of the Administrative Appeals Tribunal Act 1975 as modified by s14ZZF of the Taxation Administration Act 1953 - Tribunal refuses to exercise discretion under s 37
Lee and Secretary, Department of Social Services (Social services second review) [2018] AATA 3041 (24 August 2018); Dr L Bygrave, Member
EXTENSION OF TIME – principles to be applied – Hunter Valley Developments Pty Ltd v Cohen – whether it is reasonable in all the circumstances to grant an extension of time – acceptable explanation for delay – prejudice to the respondent and general public – merits of substantive application – extension of time refused
Tandem College Pty Ltd and Australian Skills Quality Authority [2018] AATA 3046 (27 August 2018); Deputy President Rayment QC
PRACTICE AND PROCEDURE – application for stay orders – reviewable decisions were to refuse applicant’s renewal of registration and amend the scope of applicant’s registration – registration as a national VET regulator registered training organisation – applicant has sufficient prospects of success in the applications for review – refusal of stay would adversely affect applicant and applicant’s students – public interest does not require that stay be refused – stay granted subject to certain conditions
Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047 (23 August 2018); Senior Member R Cameron
PRACTICE AND PROCEDURE – stay application – interim stay order revoked - Applicant’s registration cancelled under National Vocational Education and Training Regulator Act 2011 - renewal of registration as an RTO refused – consideration of factors as to whether stay should be granted – public interest – financial circumstances of Applicant – whether application rendered nugatory if stay not granted

VMQD and Commissioner of Taxation (Taxation) [2018] AATA 3147 (29 August 2018); Mr P W Taylor SC, Senior Member
PRACTICE AND PROCEDURE - lodging of documents with the Tribunal - application for an order that the respondent lodge additional documents - claim that the documents that may be relevant to the decision under review are in the possession of the respondent but have not been lodged - section 37 of the Administrative Appeals Tribunal Act 1975 as modified by s 14ZZF of the Taxation Administration Act 1953 - respondent obliged to produce documents which are considered necessary to the review - respondent to lodge documents
Social Security
BQCY and Secretary, Department of Social Services (Social services second review) [2018] AATA 3038 (24 August 2018); Dr P McDermott RFD, Deputy President
SOCIAL SECURITY – Newstart Allowance debt – whether the applicant was overpaid amounts of rent assistance – whether special circumstances exist – whether debt should be waived or written off – applicant not entitled to rent assistance during relevant period – debt is payable to the Commonwealth – decision under review affirmed
JYHX and Secretary, Department of Social Services (Social services second review) [2018] AATA 3093 (27 August 2018); D K Grigg, Member
SOCIAL SECURITY – disability support pension – whether medical conditions permanent – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
Lombardi and Secretary, Department of Social Services (Social services second review) [2018] AATA 3044 (24 August 2018); Senior Member B J Illingworth
SOCIAL SECURITY – Age pension – Overseas applicant – Application to dismiss – Whether any reasonable prospects of success – Whether any special circumstances – Whether any discretion – Whether Respondent required to provide notice of change to legislation – Application for review dismissed
Ognjenovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 3098 (29 August 2018); Mrs J C Kelly, Senior Member
SOCIAL SECURITY – disability support pension – cancellation of disability support pension – portability of disability support pension – whether applicant qualified for disability support pension – major depressive disorder and post-traumatic stress disorder – type 2 diabetes mellitus – spine condition – upper limb condition – lower limb condition – hypothyroidism – umbilical hernia – stress urine incontinence – vision loss – hearing loss – asthma – whether applicant’s conditions rated at 20 points or more under the Impairment Tables – whether applicant had a continuing inability to work – decision affirmed

Sziva and Secretary, Department of Social Services (Social services second review) [2018] AATA 3040 (11 July 2018); Senior Member B Stefaniak AM RFD
SOCIAL SECURITY– disability support pension – whether applicant qualified for disability support pension – mental health condition – whether applicant’s condition attracted 20 points or more under the Impairment Tables during the relevant period – set aside and substituted
Taxation
Ford and Commissioner of Taxation (Taxation) [2018] AATA 3039 (23 August 2018); D K Grigg, Member
TAX – where applicant failed to provide her income tax return on time - whether administrative penalty correctly imposed under section 284-75(3) of Schedule 1 of the Taxation Administration Act 1953 –– whether discretion should be exercised to remit the penalty - decision under review affirmed
Mango Reef Pty Ltd and Commissioner of Taxation (Taxation) [2018] AATA 3091 (28 August 2018); Deputy President I R Molloy
TAXATION – objections to assessments – creditable acquisitions – alleged gold transactions – creditable acquisitions of scrap gold of which input tax credits should be attributed – administrative penalties – remission of administrative penalties
Veterans' Affairs
Costa and Repatriation Commission (Veterans’ entitlements) [2018] AATA 3035 (23 August 2018); Deputy President JW Constance
VETERANS’ ENTITLEMENTS – application for widow’s pension – whether spouse’s death was war-caused – hypertension – cerebrovascular accident – atrial fibrillation – smoking and alcohol related condition – hypothesis connecting injury or disease with the circumstances of operational service – Statement of Principles No. 63 of 2013 – Statement of Principles No. 65 of 2015 – Statement of Principles No. 49 of 2014 – decision set aside
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	
Al Mansori and Minister for Immigration and Border Protection	[2017] AATA 713	
FYVY and Minister for Immigration and Border Protection	[2018] AATA 671	
Khalil and Minister for Immigration and Border Protection 	[2018] AATA 311	
Lam and Minister for Home Affairs 	[2018] AATA 2005	
Romanov and Minister for Immigration and Border Protection	[2018] AATA 937	

Appeals finalised
CASE NAME	AAT reference	court Reference	
Wu v Commissioner of Taxation	[2015] AATA 78	[2018] FCA 1339	

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