AAT Bulletin
Issue No. 35/2018                 10 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
Bankruptcy
Citizenship
Compensation
Corporations
Migration
Practice and Procedure
Social Security
Veterans' Affairs
Appeals
Appeals lodged
Extension of Time Applications lodged
Appeals finalised
Statements of Principles
New Statements of Principles
Amended Statements of Principles
Statements of Principles to be repealed

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.
Bankruptcy
Jones and Inspector-General in Bankruptcy [2018] AATA 3260 (5 September 2018); Deputy President Boyle
BANKRUPTCY – trustee’s objection to discharge – does the objection specify at least one special ground – elements of s 149D(1)(d) – request in writing by the trustee to provide written information – was the request for information a valid request – did the Applicants’ fail to comply with the request – decision set aside and substituted
Citizenship
Kanis and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3222 (5 September 2018); Senior Member L Kirk
CITIZENSHIP – application for citizenship by conferral – permanent resident – unable to satisfy general residency requirement or special residency requirement – ministerial discretion sought to consider applicant the de facto partner of an Australian citizen – applicant’s absences did not relate to de facto relationship – special residence requirement – whether Applicant is the member of crew of an aircraft – whether Applicant is required to travel outside Australian because of work – flight simulation instructor – not satisfied –  decision affirmed
Compensation
Boateng and Comcare (Compensation) [2018] AATA 3198 (29 August 2018); Mr M Hyman, Member
COMPENSATION – jurisdiction – whether jurisdiction extends to both psychiatric and physical conditions – claim form and supporting material – omission of physical condition from scope of initial determination – inclusion of physical condition in reconsideration determination – tribunal’s jurisdiction on review extends to physical condition
Dring and Telstra Corporation Limited (Compensation) [2018] AATA 3149 (31 August 2018); Ms A Burke, Member
WORKERS’ COMPENSATION – injury resulting from fall – whether injury arose out of or in the course of employment – whether injury occurred in interval between periods of work – whether consumption of alcohol constituted serious and willful misconduct – causation – permanent impairment – decision affirmed

Liu and Comcare (Compensation) [2018] AATA 3200 (4 September 2018); Deputy President G Humphries
COMPENSATION – SRC Act s 5A – whether Ms Liu suffered her psychological ailment as the result of reasonable administrative action taken in a reasonable manner in respect of her employment  – whether the taking of the reasonable administrative action was an event without which Ms Liu’s psychological ailment would not have been a disease –  reviewable decision affirmed
Sarraf and Comcare (Compensation) [2018] AATA 3196 (19 July 2018); Ms AF Cunningham, Senior Member
COMPENSATION – notice – notice of injury – whether notice was given as soon as practicable – whether failure to give notice would prejudice respondent – notice was given
Corporations
Atkins and Australian Securities and Investments Commission [2018] AATA 3223 (5 September 2018); Dr M Evans, Senior Member
CORPORATIONS – 3 year banning order – financial services – self-managed superannuation fund advice – limited recourse borrowing arrangement advice – decision by Australian Securities and Investments Commission to make banning order prohibiting Applicant from providing financial services for 3 years – duration of banning order – failure to comply with a financial services law – advice vetted by financial services licensee – failure to act in best interests of clients – no findings of fraud or dishonesty – no complaints from clients – new evidence not before delegate – decision under review affirmed
Migration
Barton and Minister for Home Affairs (Migration) [2018] AATA 3261 (6 September 2018); Senior Member C Puplick AM
MIGRATION – mandatory visa cancellation – character test – discretion to revoke mandatory visa cancellation – substantial criminal record – sentence of imprisonment –  driving offences – domestic violence offences  – repeated breaches of apprehended violence orders – drug misuse –– mental health issue –  protection of the Australian community –  best interests of minor children in Australia affected by the decision – expectations of the Australian community – decision affirmed
Bhattarai and Migration Agents Registration Authority (Migration) [2018] AATA 3151 (31 August 2018); Senior Member C Puplick AM
Migration – Migration agents registration – renewal of registration application – determination of period of registration – whether application lodged within time – jurisdiction of the Tribunal – application of deeming provisions – definition of reviewable decision – decision set aside and substituted

VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268 (6 September 2018); Ms A Burke, Member
MIGRATION – 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 – minor children in Australia – strong ties to Australia – impediments if applicant removed – decision under review set aside
Practice and Procedure
Australian Appaloosa Association Ltd and Australian Securities and Investments Commission [2018] AATA 3173 (31 August 2018); Deputy President JW Constance
PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – prejudice – whether substantive matter has merit – extension of time granted
Perks and Secretary, Department of Social Services [2018] AATA 3221 (5 September 2018); Dr L Bygrave, Member
EXTENSION OF TIME – principles to be applied – whether application for extension of time is reasonable in all the circumstances – grounds for waiving whole or part of FTB debt and schoolkids bonus debt – definition of "special circumstances" under A New Tax System (Family Assistance) (Administration) Act 1999 – extension of time refused
Social Security
Carper and Secretary, Department of Social Services (Social services second review) [2018] AATA 3191 (28 August 2018); K Parker, Member
Debt – debt raised to recover overpayments of carer payments – overpayments arose because debtor’s wife’s income from invalidity pension not factored into calculation – debtor’s wife’s invalidity pension information disclosed to Centrelink but not coded onto system – whether Centrelink provided incorrect advice to debtor about effect of invalidity pension on carer payments – whether whole or part of debt should be written off –  whether debtor had no capacity to repay the debt – whether deductions from benefits to repay the debt would cause severe financial hardship – whether whole or part of the debt should be waived – whether debt solely attributable to an administrative error on the part of the Commonwealth – consideration of periodic information notices provided to the debtor – whether debtor received the overpayments in good faith – whether debtor knowingly failed to comply with his statutory obligations – whether special circumstances exist to warrant waiver of debt – whether more appropriate to waive rather than write off the debt – circumstances warranted waiver of debt – decision under review set aside

Carper and Secretary, Department of Social Services (Social services second review) [2018] AATA 3192 (28 August 2018); K Parker, Member
Debt – debt raised to recover overpayments of disability support pension – overpayments arose because debtor’s income from invalidity pension not factored into calculation – debtor’s  invalidity pension information disclosed to Centrelink but not coded onto system – whether Centrelink provided incorrect advice to debtor about effect of invalidity pension on disability pension payments – whether whole or part of debt should be written off –  whether debtor had no capacity to repay the debt – whether deductions from benefits to repay the debt would cause severe financial hardship – whether whole or part of the debt should be waived – whether debt solely attributable to an administrative error on the part of the Commonwealth – consideration of periodic information notices provided to the debtor – whether debtor received the overpayments in good faith – whether debtor knowingly failed to comply with her statutory obligations – whether special circumstances exist to warrant waiver of debt – whether more appropriate to waive rather than write off the debt – circumstances warranted waiver of debt – decision under review set aside
Stevenson and Secretary, Department of Social Services (Social services second review) [2018] AATA 3220 (4 September 2018); Mr K Parker, Member
SOCIAL SECURITY – age pension – date of commencement – Respondent conceded Applicant’s claim and paid age pension – application for review successful – issue in dispute resolved – Respondent made new decision to reflect concession made – application no longer had any substance – application had no prospects of success – application dismissed
Treloar and Secretary, Department of Social Services (Social services second review) [2018] AATA 3203 (4 September 2018); Senior Member BJ Illingworth
SOCIAL SECURITY – Disability Support Pension – Overpayment – Debt due to the Commonwealth – Whether attributable solely to administrative error – Whether payment received in good faith – Whether payment raised within the six week period – Decision set aside and substituted
VQFV and Secretary, Department of Social Services (Social services second review) [2018] AATA 3152 (31 August 2018); Ms A Burke, Member
SOCIAL SECURITY – Disability Support Pension – whether qualified – right knee, dermatitis allergy condition and hypertension/hypercholesterolaemia conditions – whether impairment attracts rating of 20 points or more under Impairment Tables – program of support had been undertaken – whether continuing inability to work – decision affirmed
Warren and Secretary, Department of Social Services (Social services second review) [2018] AATA 3199 (3 September 2018); Senior Member T Tavoularis 
SOCIAL SECURITY – disability support pension – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether conditions attracted 20 impairment points or more – Sojgren’s syndrome – lupus – gastrointestinal conditions – depression – dry eyes – conditions were fully diagnosed – whether conditions were fully treated and stabilised – some conditions fully treated and stabilised – where Applicant’s conditions attracted 20 impairment points under multiple tables – whether Applicant has a continuing inability to work – where Applicant had not actively participated in a program of support – decision under review affirmed

WVVD and Secretary, Department of Social Services (Social services second review) [2018] AATA 3150 (31 August 2018); D K Grigg, Member
SOCIAL SECURITY – Youth Allowance – whether decision to rejection claim was correct – whether youth allowance payable from an earlier date – whether section 43(6) of the Administrative Appeals Tribunal Act 1975 applies – decision under review affirmed
Veterans' Affairs
Potterat and Repatriation Commission (Veterans’ entitlements) [2018] AATA 3262 (5 September 2018); Senior Member DJ Morris
VETERANS’ ENTITLEMENTS – special rate pension – disabling condition – whether by reason of incapacity resulting from war-caused disabilities – whether veteran incapable of undertaking remunerative work for more than 8 hours per week – whether non-war caused preventative factors – ‘alone test’ – Tribunal satisfied that criteria are met – decision set aside and new decision substituted
THSV and Military Rehabilitation and Compensation Commission (Veterans’ entitlements) [2018] AATA 3201 (30 August 2018); Deputy President J Sosso
VETERANS’ ENTITLEMENTS – peacetime service – statement of principles no 66 of 2013 – gastro-oesophageal reflux disease – decision affirmed – permanent impairment compensation – guide to determining impairment and compensation 2016 – chapter 4 emotional and behavioural – chapter 6 gastrointestinal impairment – chapter 10 sexual function, reproduction and breasts – chapter 15 intermittent impairment – chapter 16 activities of daily living – chapter 17 disfigurement and social impairment – combined values chart – chapter 22 lifestyle effects – calculating permanent impairment compensation – decision substituted  
  
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	
Ali and Minister for Home Affairs	[2018] AATA 2512	
TPRS and Minister for Immigration and Border Protection	[2018] AATA 1278	
Extension of Time Applications lodged
CASE NAME	AAT reference	
Adekoya and Minister for Immigration and Border Protection	[2017] AATA 2028	
Hanna and Secretary, Department of Social Services	[2018] AATA 1347	
Miles and Comcare 	[2018] AATA 349 	
NVDC and Minister for Immigration and Border Protection	[2018] AATA 457	
XFKR and Minister for Immigration and Border Protection	[2017] AATA 2385 	
Appeals finalised
CASE NAME	AAT reference	court Reference	
G v Minister for Immigration and Border Protection and Anor	[2017] AATA 1052	[2018] FCA 1229	

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 commence on 24 September 2018:

Adrenal insufficiency (Balance of Probabilities) – No. 72 of 2018
https://www.legislation.gov.au/Details/F2018L01183 

Adrenal insufficiency (Reasonable Hypothesis) – No. 71 of 2018
https://www.legislation.gov.au/Details/F2018L01182

Bronchiolitis obliterans organising pneumonia (Balance of Probabilities) – No. 80 of 2018
https://www.legislation.gov.au/Details/F2018L01179 

Bronchiolitis obliterans organising pneumonia (Reasonable Hypothesis) – No. 79 of 2018
https://www.legislation.gov.au/Details/F2018L01178

Reactive arthritis (Balance of Probabilities) – No. 76 of 2018
https://www.legislation.gov.au/Details/F2018L01165

Reactive arthritis (Reasonable Hypothesis) – No. 75 of 2018
https://www.legislation.gov.au/Details/F2018L01164

Scrub typhus (Balance of Probabilities) – No. 78 of 2018
https://www.legislation.gov.au/Details/F2018L01163

Scrub typhus (Reasonable Hypothesis) – No. 77 of 2018
https://www.legislation.gov.au/Details/F2018L01162

Sinusitis (Balance of Probabilities) – No. 74 of 2018
https://www.legislation.gov.au/Details/F2018L01177

Sinusitis (Reasonable Hypothesis) – No. 73 of 2018
https://www.legislation.gov.au/Details/F2018L01175

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. They commence on 24 September 2018:

Loss of Teeth (Balance of Probabilities) – No. 84 of 2018
https://www.legislation.gov.au/Details/F2018L01176 
Loss of Teeth (Reasonable Hypothesis) – No. 83 of 2018
https://www.legislation.gov.au/Details/F2018L01171 
Malignant neoplasm of the breast – No. 81 of 2018
https://www.legislation.gov.au/Details/F2018L01166 
Malignant neoplasm of the breast – No. 82 of 2018
https://www.legislation.gov.au/Details/F2018L01167 
Tooth wear (Balance of Probabilities) – No. 86 of 2018
https://www.legislation.gov.au/Details/F2018L01170 
Tooth wear (Reasonable Hypothesis) – No. 85 of 2018
https://www.legislation.gov.au/Details/F2018L01169 
Veterans' Entitlements (Statements of Principles—Category 1B Stressor) Amendment Determination 2018 – No. 87 of 2018
Note - This instrument makes amendments to various Statements of Principles
https://www.legislation.gov.au/Details/F2018L01188

Statements of Principles to be repealed	
The AAT has been advised that the following Statements of Principles determined by the Repatriation Medical Authority will be repealed on 24 September 2018:
Adrenal insufficiency – No. 75 of 2009 
https://www.legislation.gov.au/Details/F2009L04046 
Adrenal insufficiency – No. 74 of 2009 
https://www.legislation.gov.au/Details/F2009L04045 
Bronchiolitis obliterans organising pneumonia – No. 63 of 2009
https://www.legislation.gov.au/Details/F2009L03226 
Bronchiolitis obliterans organising pneumonia – No. 62 of 2009 
https://www.legislation.gov.au/Details/F2009L03225 
Reactive arthritis – No. 27 of 2010
https://www.legislation.gov.au/Details/F2010L01043
Reactive arthritis – No. 26 of 2010
https://www.legislation.gov.au/Details/F2010L01042
Scrub typhus – No. 73 of 2009
https://www.legislation.gov.au/Details/F2009L04044
Scrub typhus – No. 72 of 2009 
https://www.legislation.gov.au/Details/F2009L04043
Sinusitis – No. 10 of 2010
https://www.legislation.gov.au/Details/F2010L00554
Sinusitis – No. 9 of 2010
https://www.legislation.gov.au/Details/F2010L00553 

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