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 September 2014.

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Compensation

Carson and Comcare [2014] AATA 699; 25/9/2014; Senior Member NA Manetta

Travel expenses for treatment of severe dermatitis – Treatment undertaken over a course of consecutive days – Each day’s attendance to be separately evaluated for its reasonableness – No single round trip exceeds 50 kilometres – no aggregation of trips permissible – decision affirmed.

 

Fernandez and Australian Postal Corporation [2014] AATA 703; 26/9/2014; Senior Member GD Friedman

Right upper limb injury – previously accepted condition – whether liability has ceased – whether compensation payable for two periods in 2012 – whether 2013 right wrist/arm injury significantly contributed to by employment – decision set aside

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Customs

Mercator Lighting Pty Ltd and Chief Executive Officer of Customs [2014] AATA 694; 23/9/2014; Deputy President FJ Alpins

Classification of goods – composite goods made up of different components – determination of essential character – application of Interpretation Rules – Customs Tariff Act 1995 (Cth) – decision affirmed

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Freedom of Information

Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707; 29/9/2014; Deputy President SA Forgie, Ms S Taglieri, Member

Request for NAPLAN and non-NAPLAN data held by ACARA – whether exemptions did not arise for consideration at all because threshold requirement of disclosure “under” the Freedom of Information Act 1982 could not be met when data had already been publicly disclosed on My School website – consideration of “disclosure”– public interest conditional exemptions relating to Commonwealth-State relations and to proper and efficient conduct of an agency’s operations apply – conceded that, if conditionally exempt, access would be contrary to the public interest – access to documents refused – decision under review affirmed

Words and Phrases – document –identified through a number of factors including analysis of context, evidence and way in which information stored

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Immigration and Citizenship

AP and Minister for Immigration and Border Protection [2014] AATA 706; 29/9/2014; Senior Member PW Taylor, SC

Citizenship by conferral – application refused – minor – child of Nepalese mother – father’s nationality uncertain – whether applicant is stateless – whether entitled to acquire foreign citizenship – decision affirmed

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Practice and Procedure

Moroni and Secretary, Department of Social Services [2014] AATA 704; 26/9/2014; Senior Member PW Taylor, SC

Extension of time application – explanation for delay – merits of substantive application – application refused

 

Singh and Administrative Appeals Tribunal [2014] AATA 701; 25/9/2014; Deputy President SA Forgie

Social Security – application dismissed as frivolous or vexatious and applicant directed not to make any further application without leave of the Tribunal – direction limited to applications to Tribunal – whether direction should be discharged or varied – Tribunal decides not to discharge or vary direction

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Social Security

Akter and Secretary, Department of Social Services [2014] AATA 708; 30/9/2014; Senior Member N Isenberg

Claim for baby bonus – Question as to identity of claimant on form – Relevant period for consideration – Whether Applicant or child Australian Residents at time of application – Child not resident in Australia at time of application – Applicant not eligible for Family Tax Benefit with respect to birth of child – No discretion to waive residence requirement – Decision under review affirmed

 

Casey and Secretary, Department of Social Services [2014] AATA 690; 22/9/2014; Senior Member G Ettinger

Overpayment of pension – Applicant did not disclose purchase of land in Queensland to the Respondent – Applicant claims he bought it for his son – he did not tell his son about it – Tribunal finds that the Applicant has used the names Patrick Peter Casey and Peter Patrick Casey interchangeably for most of his life – decision under review affirmed.

 

Connlley and Secretary, Department of Social Services [2014] AATA 710; 30/9/2014; Senior Member AF Cunningham

Disability support pension – disc prolapse and frozen shoulder – required impairment rating of 10 points not satisfied – decision under review affirmed

 

Coulter; Secretary, Department of Social Services and [2014] AATA 695; 24/9/2014; Senior Member NA Manetta

Pensions, benefits and allowances – entitlement to Disability Support Pension – whether impairments 20 points under the Impairment Tables – continuing inability to work – program of support – decision set aside.

 

Edwards and Secretary, Department of Social Services [2014] AATA 698; 25/9/2014; Senior Member D Letcher

Pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – whether applicant had a continuing inability to work – decision set aside

 

Giles; Secretary, Department of Social Services and [2014] AATA 685; 19/9/2014; Senior Member NA Manetta

Pensions, benefits and allowances – Disability Support Pension – eligibility – Impairment Tables – whether 20 impairment points could be assigned under one or more tables – continuing inability to work – program of support – decision under review affirmed.

 

HLMS and Secretary, Department of Social Services [2014] AATA 693; 23/9/2014; Senior Member AK Britton

Disability support pension – portability period – discretionary power to determine portability period – decision affirmed

 

Marwood; Secretary, Department of Social Services and [2014] AATA 686; 19/9/2014; Senior Member NA Manetta

Pensions, benefits and allowances – Disability Support Pension – Impairment Tables – whether conditions warranted 20 impairment points or more under one or more tables – continuing inability to work – whether participation in program of support – decision set aside.

 

Menzies and Secretary, Department of Social Services [2014] AATA 689; 1/8/2014; Senior Member AK Britton

Disability Support Pension – Whether the Applicant’s conditions were permanent – Whether the Applicant suffers a “severe impairment” – Whether the Applicant has undertaken a program of support – Decision affirmed

 

Taylor and Secretary, Department of Social Services [2014] AATA 705; 26/9/2014; Mr M Hyman, Member

Application for disability support pension – claimant suffers from spinal condition and depression – whether spinal condition fully diagnosed, treated and stabilised – whether depression fully diagnosed, treated and stabilised – depression not fully treated – decision under review affirmed

 

Thomson and Secretary, Department of Social Services [2014] AATA 696; 24/9/2014; Senior Member NA Manetta

Pensions, benefits and allowances – Disability Support Pension – whether conditions fully treated, diagnosed and stabilised – whether impairments from conditions warrant 20 points under one or more tables – continuing inability to work – decision affirmed

 

Vo and Secretary, Department of Social Services [2014] AATA 697; 25/9/2014; Senior Member G Ettinger

Youth Allowance – Whether Applicant satisfies activity test – Whether Applicant undertaking full–time study at the relevant time – Whether an overpayment of Youth Allowance – Whether debt should be waived – Decision under review affirmed

 

Westbrook and Secretary, Department of Social Services [2014] AATA 700; 25/9/2014; Senior Member NA Manetta

Age pension – review of varied decision taken by respondent – departmental decision to seek recovery of an alleged overpayment – wife’s income relevant to applicant’s pension entitlement overestimated – matter previously remitted to respondent under s 42D of the Administrative Appeals Tribunal Act – gross income – expenses incurred in the earning of income irrelevant – averaging over preceding 13 week period or over a full year – decision remitted to respondent for further minor recalculation.

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Tax Agents

Burnett and Tax Practitioners Board [2014] AATA 687; 19/9/2014; Deputy President K Bean

Tax agents – Whether applicant a fit and proper person to be registered as a tax agent – Decision under review affirmed.

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Taxation

KNNW and Commissioner of Taxation [2014] AATA 691; 22/9/2014; Senior Member FD O’Loughlin

Relief from taxation debt – serious hardship – whether there is serious hardship – if there is serious hardship whether discretion to release ought be exercised – decision affirmed.

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Veterans' Affairs

Fielden and Repatriation Commission [2014] AATA 702; 25/9/2014; Brigadier C Ermert (Retd), Member

Veteran not yet turned 65 – totally and permanently incapacitated – incapacity from war-caused injury or war-caused disease alone – prevented from continuing to undertake remunerative work – decision set aside

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