The following Written Reasons for Decisions have been handed down this week. Links to the full text of the Decisions at the AustLII website are provided.
This page is updated each weekday and is current to 26 March 2015.
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Caplikas and Comcare  AATA 170; 25/3/2015; Senior Member JF Toohey, Dr W Isles, Member
Knee injury – liability accepted – stem cell assisted arthroscopy – whether proposed surgery was reasonable medical treatment – evidence of promising results – decision under review affirmed
Greaves and Comcare  AATA 177; 26/3/2015; Deputy President K Bean
Commonwealth employees – Whether Applicant continues to suffer effects of injury – Nature of injury suffered – Whether symptoms result from pre-existing degenerative condition – Decision under review affirmed.
Hartas and Telstra Corporation Limited  AATA 147; 13/3/2015; Dr J Popple, Senior Member
Commonwealth employees – payment for permanent incapacity – payment adjusted for hours employee is able to earn – whether ability to earn affected by subsequent injury – compensation payable ‘as a result of an injury’ – ability to earn calculated but for subsequent injury – decision affirmed.
Johns and Comcare  AATA 164; 20/3/2015; Senior Member GD Friedman
Australian Taxation Office – Law Interpretation Specialist – depressive disorder – breach of code of conduct – whether applicant entitled to compensation for incapacity – whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether aggravation of existing condition – decision under review affirmed
Thompson and Military Rehabilitation and Compensation Commission  AATA 171; 25/3/2015; Deputy President PE Hack SC, Dr M Sullivan, Member
Where an injury to an employee results in death – rheumatic fever an accepted “injury” – contracted during military employment – evaluation of causal chain – relationship between rheumatic fever and later cardiac conditions – acute myocardial infarction – whether aortic dissection – paucity of imaging and post-mortem evidence – “uncommon condition” – decision under review affirmed
FTZK and Minister for Immigration and Border Protection  AATA 155; 18/3/2015; Deputy President SA Forgie
Remittal from High Court – Convention and Protocol relating to Status of Refugees – whether applicant excluded from its protection by Article 1F(b) – whether there are serious reasons for considering that applicant committed kidnap and murder – decision set aside
Kurban and Minister for Immigration and Border Protection  AATA 168; 24/3/2015; Professor R Deutsch, Deputy President
Whether Applicant of good character – Australian Citizenship Instructions – declaring offences on statutory declaration – gambling addiction – expired good behaviour bond – decision under review set aside and remitted
Bennett and Ors and Commissioner of Taxation  AATA 144; 28/1/2015; The Hon. B Tamberlin QC, Deputy President
Referral to Federal Court on question of law – whether question in the form of a special case – absence of findings or agreement on facts – application refused.
De Los Santos-Aguilar and Migration Agents Registration Authority  AATA 157; 19/3/2015; The Hon. B Tamberlin QC, Deputy President
Reinstatement – whether application for review was dismissed in error – whether discretion to reinstate application should be exercised – application reinstated
Mahaffy and Tax Practitioners Board  AATA 173; 26/3/2015; Deputy President JW Constance
Application to dismiss proceedings – failure to comply with direction within reasonable time – application dismissed
Armao and Secretary, Department of Social Services  AATA 146; 13/3/2015; Dr T Nicoletti, Senior Member
Pensions – disability support pension – cancellation – qualification for pension – whether the applicant’s impairment rating was 20 points or more – decision affirmed
Baumeister and Secretary, Department of Social Services  AATA 149; 16/3/2015; Professor R McCallum AO, Member
Age pension – Pension Bonus Scheme – whether pension should be paid at single rate or member of a couple rate – member of a couple test – decision under review affirmed
Chattopadhyay and Secretary, Department of Social Services  AATA 158; 19/3/2015; Senior Member JF Toohey
Social security – disability support pension – ulcerative colitis – diabetes mellitus – glaucoma – hypertension – cardiac disease – whether conditions fully diagnosed treated and stabilised – impairment ratings – program of support – active participation – exemptions – decision under review affirmed
Curtis-Smith and Secretary, Department of Social Services  AATA 152; 17/3/2015; Dr T Nicoletti, Senior Member
Pensions – age pension – whether the applicant was required to be an Australian resident when he made a claim for age pension – whether applicant was an Australian resident – decision affirmed.
Fidanza and Secretary, Department of Social Services  AATA 150; 16/3/2015; Dr M Denovan, Member
Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Fibromyalgia – Decision under review affirmed.
Kormali and Secretary, Department of Social Services  AATA 154; 18/3/2015; Senior Member JF Toohey
Disability support pension – psychiatric impairment – evidence of serious impairment – whether fully diagnosed during claim period – whether fully treated and stabilised during claim period – decision under review affirmed
Madej and Secretary, Department of Social Services  AATA 162; 20/3/2015; Mr C Ermert, Member
Disability support pension – impairment tables – impairment rating – fully treated – fully stabilised – whether 20 impairment points − decision affirmed
McMurray and Secretary, Department of Social Services  AATA 159; 19/3/2015; Mr C Ermert, Member
Family assistance benefits – overpayment – debt owed to the Commonwealth – administrative error – debt attributable solely to error made by the Commonwealth – received in good faith – no financial hardship – no special circumstances – decision affirmed
Norman and Secretary, Attorney-General’s Department  AATA 92; 20/2/2015; Deputy President JW Constance
Victims of terrorism payment – secondary victim of a declared overseas terrorist act – close family member – partner – whether Applicant a member of a couple with the deceased – whether relationship was a de facto relationship – decision set aside and remitted
Saad and Secretary, Department of Social Services  AATA 160; 19/3/2015; Professor R McCallum AO, Member
Disability support pension – wife pension – cancellation of payments – qualification for indefinite portability – decision affirmed
Anderson and Commissioner of Taxation  AATA 167; 23/3/2015; Senior Member BJ McCabe
GST Assessment and Penalty Decisions – Applicant’s liability to pay GST – Trustee of the trust is separate entity to trustee in personal capacity – Trustee not an ‘incapacitated entity’ for purposes of tax legislation – Retirement of individual as trustee does not affect liability of trustee in that capacity – Trustee of the trust liable to pay GST – Question of recovery not before Tribunal – Objection decision varied in light of concessions made by parties – Decided in substitution that assessment for quarter ended 31 December 2009 reduced to $21,446 – Assessment for quarter ended 31 March 2010 reduced to nil – Total administrative penalty for quarters ended 31 December 2009 and 31 March 2010 reduced to nil.
Rigoli and Commissioner of Taxation  AATA 169; 24/3/2015; Senior Member E Fice
Income tax and related legislation – Returns and assessments – Assessments – Default, special and arbitrary assessments – Assessments made where no tax return provided
Administration of federal tax legislation – Objections, reviews and appeals – Review or appeal – Evidence – Onus of proof that taxation decision excessive or incorrect – Taxpayer to prove assessment excessive – Failure to discharge onus
Administration of federal tax legislation – Objections, reviews and appeals – Review or appeal – Review by Administrative Appeals Tribunal and its predecessors – Nature of review – Administrative Appeals Tribunal reviews objection decision
Ting and Commissioner of Taxation  AATA 166; 23/2/2015; Deputy President FJ Alpins
Income tax – allowable deductions – whether expenses incurred in undertaking post-graduate studies in management were incurred “in gaining or producing” applicant’s assessable income as school teacher – Income Tax Assessment Act 1997 (Cth) s 8-1
Administrative penalty – false or misleading statement – whether shortfall amount resulted from a failure to take reasonable care – whether remission of penalty warranted
Stewart and Repatriation Commission  AATA 148; 13/3/2015; Dr P McDermott RFD, Senior Member
Widow’s pension – Reasonable hypothesis connecting death with service – Ischaemic heart disease – Hypertension – Hypothesis considered reasonable – Applicant entitled to widow’s pension – Decision set aside.
Woodall and Repatriation Commission  AATA 163; 20/3/2015; Senior Member J Handley
Applicant made redundant from his employment in 2008 – subsequently applied for 70 jobs without success – granted temporary special rate pension in 2009 which ceased in 2010 – payments reverted to 100 per cent of general rate – claim for special rate rejected by respondent and VRB – heard and affirmed by AAT – appeal to Federal Court – remitted by consent of both parties to the AAT after Full Court decision in Smith v Repatriation Commission – focus on re-hearing on s 24(2)(b) – previous AAT decision reversed – decision under review set aside.