Recent decisions

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 30 July 2014.

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Child Support

Varley and Child Support Registrar [2014] AATA 517; 29/7/2014; Senior Member RG Kenny

Deportation Prohibition Order (“DPO”) – No grounds requiring revocation of DPO – No grounds for exercising discretion to revoke DPO – Objects of the Child Support (Registration and Collection) Act 1988 (Cth) – Use of the Child Support Guide – Decision under review affirmed

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Civil Aviation

Ryan and Civil Aviation Safety Authority [2014] AATA 494; 18/7/2014; Deputy President PE Hack SC

Medical certificate – problematic substance use – whether a history of problematic alcohol use – whether engaged in problematic alcohol use – decision under review set aside and remitted

 

Compensation

Miechel and Military Rehabilitation Compensation Commission [2014] AATA 508; 25/7/2014; Deputy President SA Forgie

Practice and Procedure – amount payable during periods of incapacity – injury sustained while in Army – discharged from Army – engaged in Citizen Military Force (now Army Reserve) – no continuity of Commonwealth employment – payment as Lieutenant on discharge from Army payable

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Employment

McBryde and Secretary, Department of Employment [2014] AATA 434; 2/7/2014; Senior Member RG Kenny

Company in liquidation – Claim by employee for an advance under the Fair Entitlements Guarantee Act 2012 (Cth) – Applicant’s brother a director of and employee of the company – On that basis, applicant excluded from making a claim – Decision under review affirmed

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Health

Accord Australasia Limited and Director, Chemicals Notification and Assessment Scheme [2014] AATA 504; 24/7/2014; Deputy President RP Handley and Professor G Johnston, Member

Imposition of conditions of use - Whether Respondent has power to impose condition of use -Whether reasonable for the Respondent to find that, when used in cosmetics, these chemicals may pose an unreasonable risk to health, safety and the environment - Chemicals pose an unacceptable risk to human health and/or the environment - Appropriate to limit the use of the chemicals to concentrations known to be safe - Setting of volume limits not justified - Definitive data required to justify the application of specific conditions - Decision under review varied - Additional conditions removed - Further assessment of the chemicals recommended

 

Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority and Ors [2014] AATA 496; 18/7/2014; Senior Member E Fice

Pharmacies – Recommendation of Australian Community Pharmacy Authority – Approval to supply pharmaceutical benefits – New pharmacy in a small shopping centre – Legal right to occupy the proposed premises – Information to be considered by the Authority – Single management – Commercial establishment – Gross leasable area of at least 5000 m2 – At least 15 other commercial establishments – Temporary selling points – Occupied by or likely to be occupied by one business – Separate commercial establishments – Decision under review set aside and substituted 

Practice and Procedure – Statutory interpretation – Onus of proof – Inferences

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Immigration and Citizenship

Zhang and Minister for Immigration and Border Protection [2014] AATA 514; 28/7/2014; Dr P McDermott RFD, Senior Member

Application for citizenship by conferral – Whether applicant meets residence requirements – Whether applicant likely to reside in Australia – Whether ministerial discretion be exercised – Whether applicant has a close and continuing association with Australia – Decision under review affirmed

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National Disability Insurance Scheme

TKCW and National Disability Insurance Agency [2014] AATA 501; 23/7/2014; Senior Member J Toohey, Mr I Thompson, Member

Child – Autism Spectrum Disorder – early intervention requirements – reasonable and necessary supports – The Listening Program – current good practice – child care support – decision under review affirmed

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Social Security

Austin and Secretary, Department of Social Services [2014] AATA 516; 29/7/2014; Senior Member RG Kenny

Pensions, benefits and allowances – Settlement of compensation claim – Lump–sum compensation payment includes component referable to lost earnings and capacity to earn – Imposition of preclusion period – Use of Guide to Social Security Law – Special circumstances not established for part of settlement to be treated as not having been received – Preclusion period not shortened – Decision under review affirmed

 

Bates and Secretary, Department of Social Services [2014] AATA 436; 3/7/2014; Senior Member D Letcher QC

Disability Support Pension – suspension and cancellation of payments –whether Applicant resident of Australia at relevant time – relevant considerations – partner and daughter in Indonesia –  short periods in Australia only – Tribunal not satisfied on balance of all considerations that applicant resided in Australia at relevant time – decision under review affirmed

 

Confidential and Secretary, Department of Social Services [2014] AATA 510; 25/7/2014; Miss EA Shanahan, Member

Pensions and allowances – carer allowance – incomplete medical assessment and carer’s questionnaire forms provided – no diagnosis of any medical condition – assessment relates to the intensity of the level of care not the intensity of the underlying medical condition if any – decision affirmed

 

Ellis and Secretary, Department of Social Services [2014] AATA 509; 18/7/2014; Dr J Chaney, Member

Claim for Disability Support Pension – Whether Applicant has any Impairments – Whether Impairments attract 20 points under the Impairment Tables – Whether the Applicant has a Continuing Inability to Work 

 

Merhab and Secretary, Department of Social Services [2014] AATA 512; 22/7/2014; Mr D Ermert, Member

Newstart Allowance – new decision under review – time limits for favourable determination – notices – decision affirmed

 

Rajkovic and Secretary, Department of Social Services [2014] AATA 502; 23/7/2014; Deputy President RP Handley

Age Pension – Claim refused for failure to meet residence requirements – Whether Applicant Australian Resident – The nature of the accommodation used by the Applicant in Australia – The nature and extent of the family relationships the Applicant has in Australia – The nature and extent of the Applicant's employment, business or financial ties with Australia – The nature and extent of the Applicant's assets located in Australia – The frequency and duration of the Applicant's travel outside Australia – Applicant did not reside in Australia at time of application – Decision under review affirmed

 

Sirijovski and Secretary, Department of Social Services [2014] AATA 505; 24/7/2014; Miss EA Shanahan, Member

Pensions and allowances – disability support pension – back injury leading to chronic pain syndrome following motor vehicle accident – anxiety and depression – failure to satisfy s 94(1)(b) of the Social Security Act 1991 in not attaining a 20 impairment point rating – new application successful in January 2014 – in receipt of DSP – eligibility under review – applicant seeking back payment of DSP – recent treatment for back pain –– decision under review affirmed.

 

Wright and Secretary, Department of Social Services [2014] AATA 498; 21/7/2014; Senior Member RG Kenny

Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment from facial pain condition fully diagnosed, treated, stabilised and permanent – Depression not permanent – Impairment Tables – Ratings allocated for chronic pain under Tables 1, 7 and 8 of the Impairment Tables – Overall impairment rating more than 20 points – Program of support completed by applicant – Continuing inability to work – Applicant qualified for disability support pension during the relevant period – Decision under review set aside and substituted 

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Taxation

Cameron and Commissioner of Taxation [2014] AATA 499; 22/7/2014; Senior Member PW Taylor SC

Income tax – amended assessments disallowed PAYG credit claims – jurisdiction of Tribunal – penalty – whether to remit – decisions affirmed

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Veterans' Affairs

Beezley and Repatriation Commission [2014] AATA 495; 18/7/2014; Senior Member J Handley

Special Rate – applicant engaged in electroplating initially as a sole trader from 1980 – business incorporated in 1991 – Applicant and his wife were directors of the company until 11 May 2011 when it was placed into liquidation – applicant turned 65 on 23 May 2011 – claim for special rate pension made on 31 May 2011 – applicant paid income for month in advance from first week of May 2011 – the applicant completed orders between 11 and 19 May 2011, assisted the liquidator and attended the creditors meeting on 26 May 2011 – statutory responsibilities assisting the liquidator was not last paid work – applicant not prevented from continuing to undertake last paid work by war-caused injuries alone after turning 65 – decision under review affirmed.

 

Horn and Repatriation Commission [2014] AATA 520; 29/7/2014; Dr P McDermott RFD, Senior Member, Dr GJ Maynard, Brigadier (Rtd), Member

Pensions and benefits – Widow's pension – Death of veteran – Death by dementia – Operational service – Statement of Principles concerning Alzheimer–type Dementia – Statement of Principles concerning Hypertension – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted

 

Lamp and Repatriation Commission [2014] AATA 506; 25/7/2014; Deputy President K Bean, Senior Member NA Manetta

Veterans' entitlements – Rate of disability pension – Special rate – Whether "alone test" satisfied – Decision under review varied.

 

Schwind and Repatriation Commission [2014] AATA 503; 23/7/2014; Senior Member RG Kenny

Benefits and entitlements – Disability pension – Operational service with Australian Regular Army – Claim for bilateral hip pain – Diagnoses of trochanteric bursitis and abductor tendonitis both hips – Concession by applicant that hip conditions not attributable to Army service – Entitlement decision under review affirmed
Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Accepted disabilities sufficient to prevent applicant from working eight hours per week – Incapacity from war–caused conditions not sufficient, alone, to prevent undertaking remunerative work for more 8 hours per week – Neither intermediate nor special rate payable – Assessment decision under review affirmed

 

Smith and Repatriation Commission [2014] AATA 500; 22/7/2014; Senior Member D Letcher QC

Claim for war widow’s pension – operational service – whether veteran’s service led to death – complex hypothesis – decision under review affirmed

 

Sweet and Repatriation Commission [2014] AATA 497; 18/7/2014; Senior Member RG Kenny

Benefits and entitlements – Disability pension payable at 100% of general rate – Application for increase in pension – Eligibility for special rate of pension – Remunerative work – Incapacity from war–caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Applicant prevented from undertaking remunerative work due solely to accepted disabilities – Special rate payable from date of claim for increase in pension – Decision under review set aside and substituted 

 

Thompson and Repatriation Commission [2014] AATA 518; 29/7/2014; Dr P McDermott RFD, Senior Member, Dr GJ Maynard, Brigadier (Rtd), Member

Pensions and benefits – Widow's pension – Death of veteran – Death by hypertension – Operational service – Statement of Principles concerning Hypertension (Instrument No 63 of 2013) – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted

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