AAT Bulletin
Issue No. 48/2018	10 December 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
Migration
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
Duffy and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4476 (1 November 2018); Mrs JC Kelly, Senior Member
CITIZENSHIP – refusal of citizenship – Applicant will be spending significant period outside of Australia – whether Applicant is likely to reside or continue to reside in Australia – whether Applicant is likely to maintain a close and continuing association with Australia – Applicant has spent lengthy periods in Australia and has developed close ties – set aside and remitted
Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524 (5 December 2018); Dr D Cremean, Senior Member
CITIZENSHIP – decision to refuse application for citizenship by conferral – good character test – convictions for false and misleading statement – public interest – decision set aside and substituted
Compensation
Katterns and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4462 (30 November 2018); Deputy President I R Molloy
COMPENSATION – Service Injury or Disease – Medical Evidence – Reviewable Decisions Affirmed
Migration
BBFD and Minister for Home Affairs (Migration) [2018] AATA 4479 (3 December 2018); Senior Member T Tavoularis
MIGRATION – refusal of protection visa pursuant to s 501(1) – applicant does not pass the character test – considerations in Ministerial Direction N0. 65 – whether there is another reason for the discretion to refuse to grant the visa to not be applied – offences committed in New Zealand – offences committed in Australia – decision under review affirmed
Karan and Minister for Home Affairs (Migration) [2018] AATA 4480 (4 December 2018); Senior Member C Puplick AM
MIGRATION – visa refusal  – character test – criminal record – multiple offences – violence offence – threatening offence – dishonesty offences – drug offences – traffic offences – property offences – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations –  ties to Australia – extent of impediments if removed – affirmed
ToTK and Minister for Home Affairs (Migration) [2018] AATA 4483 (3 December 2018); Senior Member Mr PW Taylor SC
IMMIGRATION AND CITIZENSHIP – mandatory visa cancellation – Refugee visa – failure to pass character test – substantial criminal record – Ministerial Direction no. 65 applied – whether another reason why cancellation decision should be revoked – protection of the Australian community – community expectation – Australian ties – whether applicant will face hardship upon return to home country – risk of persecution on the basis of religion – likelihood of indefinite immigration detention – decision set aside and substituted
Practice and Procedure
Kadeh and Migration Agents Registration Authority (Migration) [2018] AATA 4461 (30 November 2018); Senior Member L Kirk
PRACTICE AND PROCEDURE – application for stay order – prospects of success – consequences of refusal of a stay – public interest – consequences for the respondent in carrying out its functions depending upon whether a stay is granted – whether application for review would be rendered nugatory if a stay were not granted – utility in granting stay order – application for stay order refused – application for confidentiality order – financial harm – reputational harm – public interest – application for confidentiality order refused
Social Security
Ausilio and Secretary, Department of Social Services (Social services second review) [2018] AATA 4463 (13 November 2018); K Parker, Member
SOCIAL SECURITY – Applicant seeking reconciliation of family tax benefits in order to receive supplement – request for extension of time to lodge Applicant’s tax return – whether special circumstances prevented Applicant from lodging tax return before the deadline – decision affirmed
LXML and Secretary, Department of Social Services (Social services second review) [2018] AATA 4465 (30 November 2018); C Edwardes, Member 
SOCIAL SECURITY – failure to lodge tax returns – FTB entitlement – lump sum claims – whether special circumstances prevented applicant making claim – prescribed time – decision affirmed  
Popovski and Secretary, Department of Social Services (Social services second review) [2018] AATA 4477 (4 December 2018); Senior Member A Poljak
SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's conditions were fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – decision affirmed

Puls and Secretary, Department of Social Services (Social services second review) [2018] AATA 4464 (26 October 2018); K Parker, Member 
SOCIAL SECURITY – request for extension of time to lodge application out of time – substantive application relates to a claim for disability support pension – whether reasonable explanation for the two-month delay – consideration of merits of success in the substantive application – Applicant underwent surgeries and other treatment to treat his primary condition after the relevant qualification period – conditions not fully treated and fully stabilised at time of qualification period – Tribunal refused to grant extension of time
Ong; Secretary, Department of Social Services (Social services second review) [2018] AATA 4410 (26 November 2018); Senior Member BJ Illingworth
SOCIAL SECURITY – Claim for Disability Support Pension – Physical, intellectual or psychiatric impairment – Multiple impairments – Whether a combined impairment rating of 20 points or more exists under the Impairment Tables – Whether fully diagnosed, fully treated and stabilised – Job Capacity Assessment Report considered – Medical reports considered – Decision under review set aside and substituted
Sharman and Secretary, Department of Social Services (Social services second review) [2018] AATA 4482 (3 December 2018); Mr A Maryniak QC, Member
SOCIAL SECURITY – claim for disability support pension – assessment of impairments – 20 point requirement not satisfied – 10 points assigned for impairment from spinal condition – other claimed conditions given no impairment points or not fully diagnosed, treated and stabilised – decision affirmed
Taxation
McMullen and Commissioner of Taxation (Taxation) [2018] AATA 4481 (4 December 2018); Senior Member T Tavoularis
TAXATION – objection to income tax assessment – whether third party payments should be included in assessment of Applicant’s income – onus of proof –  where insufficient evidence was adduced to establish ‘reasonable explanation’ for third party payments – decision under review affirmed
Queensland Maintenance Services Pty Ltd (In Liquidation) and Commissioner of Taxation (Taxation) [2018] AATA 4525 (5 December 2018); Deputy President IR Molloy
TAXATION LAW – allowable deductions – short fall penalties – whether renovation compensation invoices are an allowable deduction – whether renovation services involved liquidated damages – whether management fee expenses are an allowable deduction – the operation of the Management Agreement – whether there were management fees for actual management of childcare centres – whether loss or outgoing is capital or capital in nature – whether shortfall amounts resulted from recklessness

Veterans' Affairs
Thomson and Repatriation Commission (Veterans’ entitlements) [2018] AATA 4478 (27 November 2018); Deputy President Britten-Jones
VETERANS’ ENTITLEMENTS – Entitlement to pension – Whether injury was defence-caused – Whether injury resulted from an accident occurring whilst person was travelling during defence service other than in the course of duty for the purpose of performing a duty – Whether the accident would not have occurred but for a person rendering defence service – Decision under review affirmed
Thompson and Repatriation Commission (Veterans’ entitlements) [2018] AATA 4526 (6 December 2018); Deputy President J Sosso
VETERANS’ AFFAIRS – claim for war widow’s pension – veteran deceased – hypothesis connecting the death of the veteran with his war service – hypertension and ischaemic heart disease – Statement of Principles does not uphold a hypothesis that the veteran’s death is related to service – 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	
Lim v Comcare	[2018] AATA 4354	
Appeals finalised
CASE NAME	AAT reference	court Reference	
Frugtniet v Secretary, Department of Social Services (No. 2)	[2017] AATA 577	[2017] FCA 1227
[2018] FCA 1767	

© Commonwealth of Australia 2016

With the exception of the Commonwealth Coat of Arms and any third party material, this work is licensed under a Creative Commons Attribution 3.0 Australia Licence.  Content from this publication should be attributed as: Administrative Appeals Tribunal, AAT Bulletin.
To the extent that copyright subsists in third party material, it remains with the original owner and permission may be required to reuse the material.
The terms under which the Coat of Arms can be used are detailed on the following website: http://www.itsanhonour.gov.au/coat-arms/. 
Enquiries regarding the licence are welcome at aatweb@aat.gov.au. 
This licence is limited to the AAT Bulletin and does not extend to the full text of AAT decisions.  Separate licence terms for AAT decisions can be found on AustLII.