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 6 March 2014.
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Maksimovic and Secretary, Department of Infrastructure and Regional Development  AATA 96; 27/2/2014; Deputy President JW Constance
Aviation security identification card (ASIC) – adverse criminal record – security controlled airport – discretion to approve the issue of an ASIC – approval subject to conditions – decision under review set aside
Farrell and Comcare  AATA 113; 3/3/2014; Senior Member N Bell
Commonwealth Employees – reasonable medical treatment – reasonable duration and frequency of psychological treatment – expired decision under review affirmed – decision under review set aside
Pettiford and Comcare  AATA 95; 27/2/2014; Senior Member AK Britton
Psychiatric injury – Whether injury is the result of reasonable administrative action taken in a reasonable manner – Reasonableness to be assessed with reference to the circumstances surrounding the action – Difference between administrative action and operational action – Whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth – Meaning of employment – decision set aside and substituted
Zdziarski and Telstra Corporation Limited  AATA 108; 28/2/2014; Senior Member AK Britton
Psychiatric condition – Nature of the psychiatric condition – Substance abuse – Whether employment contributed to psychiatric condition to a significant degree – Whether psychiatric condition is the result of medical treatment received in relation to an accepted injury
Zoubi and Minister for the Environment  AATA 86; 24/2/2014; Deputy President RP Handley
Export permit – Gang-gang Cockatoos – Glossy Black Cockatoos – CITES specimen – regulated native specimen – export must be for a non-commercial purpose – purpose of research – no relevant qualifications – decision affirmed
Al Temimi and Minister for Immigration and Border Protection  AATA 97; 27/2/2014; Deputy President SD Hotop
Applicant's application for Australian citizenship refused on grounds of character and identity – applicant changed name by deed poll in Queensland in 2003 – applicant convicted of fraud in Western Australia in 2005 and sentenced to 2–year Intensive Supervision Order – applicant registered change of name in Western Australia in 2012 – applicant knowingly made false statements regarding name change in application for registration of name change and in application for citizenship – Tribunal satisfied of identity of applicant – Tribunal not satisfied that applicant of good character – applicant not eligible to become Australian citizen – decision under review affirmed
Herrmann and Minister for Immigration and Border Protection  AATA 105; 17/2/2014; Deputy President RP Handley
Citizenship by conferral – residence requirement – spousal discretion –spouse must be an Australian citizen – discretion only applies to periods where spouse was an Australian citizen – exercise of discretion would not satisfy the residence requirement – decision affirmed
Citizenship by conferral – close and continuing association – professional and community connections – requirement of a close and continuing association with Australia satisfied
Orji and Minister for Immigration and Border Protection  AATA 115; 4/3/2014; Senior Member D Letcher QC
Visa cancellation – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa – Ministerial Direction No 55 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children – effect of Nigerian Decree 33 of 1990 – decision under review affirmed
Supunyachotsakul and Minister for Immigration and Border Protection  AATA 103; 27/2/2014; 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 enlivened – Whether applicant has a close and continuing association with Australia –– Decision under review affirmed
Wang and Minister for Immigration and Border Protection  AATA 89; 28/1/2014; Senior Member N Bell
Permanent resident – application for citizenship – applicant does not meet good character requirement – exercise of discretion - application of Australian Citizenship Instructions – decision under review affirmed
Avetmiss Easy Pty Ltd and Australian Skills Quality Authority  AATA 99; 24/2/2014; Deputy President JW Constance
Application for extension of time – power of Tribunal to dismiss an application under s 42A(2) – whether extension of time application is a proceeding for the purposes of section 42A(2) – application dismissed by reason of the applicant’s failure to appear at a directions hearing.
Burnett and Tax Practitioners Board  AATA 87; 24/2/2014; Deputy President K Bean
Tax agents – Application to stay refusal to renew registration as a tax agent – Public interest considerations – Severe adverse consequences to applicant if stay refused – Where substantive application may be rendered nugatory – Stay granted.
Application for confidentiality orders – Whether cogent reasons to depart from norm – Damage to applicant's reputation – Declined to make confidentiality orders sought.
Ekinci and Ors and Civil Aviation Safety Authority  AATA 114; 3/3/2014; The Hon B Tamberlin QC, Deputy President
Application for stay order – relevant factors to be taken into account – review would be rendered nugatory if stay refused – safety and public interest – the prospects of success – consequences for the Applicant of refusal of a stay – stay granted with conditions
Estate of the late Vincent Godfrey and Secretary, Department of Social Services  AATA 107; 28/2/2014; Senior Member N Isenberg
Application for extension of time to lodge application for review – factors relevant to an extension of time – explanation of delay – prejudice to the respondent – prospects of success – application refused
Moorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development and Ors  AATA 101; 27/2/2014; Deputy President SA Forgie
Applications for joinder – whether applicants are persons whose interests are affected by the decision – whether discretion should be exercised.
Bergan and Secretary, Department of Social Services  AATA 109; 28/2/2014; Senior Member AK Britton
Disability support pension – Compensation preclusion period – Lump sum preclusion period – Whether special circumstances exist – Health problems – Reduced cognitive function and decision–making capacity – Ongoing expenses – If so, whether discretion should be exercised to treat compensation payment as not being made – Whether assets can be realised – decision set aside and remitted
Chambers and Secretary, Department of Social Services  AATA 94; 25/2/2014; Dr P McDermott RFD, Senior Member
Pensions, benefits and allowances – Disability support pension – Applicant is New Zealand citizen – Whether applicant ‘severely disabled’ in order to qualify for disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant did not participate in Program of Support – Decision affirmed
Chand and Secretary, Department of Social Services  AATA 116; 5/3/2014; Senior Member JF Toohey
Disability support pension – anxiety and depression – post traumatic stress disorder – hypertension – musculoskeletal conditions – high cholesterol – whether applicant’s conditions fully diagnosed, treated and stabilised – program of support – decision under review affirmed
Cremona and Secretary, Department of Social Services  AATA 122; 6/3/2014; Miss EA Shanahan, Member
Carer allowance child under the age of 16 – change in disability care load assessment by determination 2010 – review of eligibility October 2012 followed by cancellation of carer allowance payment – cancellation based on the carer questionnaire score – decision affirmed
Dehen and Secretary, Department of Social Services  AATA 90; 10/1/2014; Senior Member N Bell, Professor R McCallum, Member
Disability support pension – applicant seeks indefinite portability of disability support pension – whether applicant has a severe impairment – decision under review affirmed
Gilchrist and Secretary, Department of Social Services  AATA 111; 27/2/2014; Dr J Chaney, Member
Disability support pension (DSP) – qualification for DSP – applicant’s impairments total 10 points under Impairment Tables – applicant not qualified for DSP – decision under review affirmed
Ayles and Tax Practitioners Board  AATA 112; 28/2/2014; Deputy President PE Hack SC
Tax Agent – Registration – criteria for applicant – requirements – tertiary degree or award – other than accountancy – whether degree is relevant to tax agent services to which application relate – decision under review affirmed
Grosfeld and Tax Practitioners Board  AATA 100; 28/2/2014; Senior Member JL Redfern
Registration as tax agent – Renewal – Whether fit and proper person – Failure to respond to requests from the Board in “timely, responsible and reasonable manner” – Failure to lodge income tax returns and business activity statements – Failure to provide clients with a means of contact – Failure to maintain professional indemnity insurance – Failure to provide tax agent services competently – Findings in unrelated proceedings– Decision under review affirmed
QHVV and Commissioner of Taxation  AATA 104; 27/2/2014; Dr P McDermott RFD, Senior Member
Failure to lodge tax return –default notice of assessment – whether 75% penalty should be remitted – decision under review remitted to enable assessment to be varied as to income – decision under review affirmed as to the rate of penalty
The Taxpayer and Commissioner of Taxation  AATA 106; 28/2/2014; Senior Member RW Dunne
Income tax – quantum of assessable income – credit for PAYG withholding – applicant's dispute with officers of paying company – claims for work related car expenses and other work related expenses – administrative penalty – reasonable care – objection decision under review affirmed.
Thomas and Commissioner of Taxation  AATA 102; 27/2/2014; Deputy President SA Forgie
Taxation liability – release – whether payment of tax liability would cause serious hardship – factors relevant to exercise of discretion – decision affirmed.
Forster and Repatriation Commission  AATA 91; 25/2/2014; Deputy President PE Hack SC
Veterans’ entitlements – abuse suffered during apprenticeship – whether defence caused – posttraumatic stress disorder – whether category 1A stressor – whether a serious physical attack or assault – whether torture – alcohol dependence – severe child abuse – whether senior apprentices ‘care providers’ – whether serious emotional, psychological or sexual harm – clinical onset– hypertension – decision under review affirmed
Fotek and Repatriation Commission  AATA 117; 5/3/2014; Senior Member RG Kenny
Disability pension – Operational service with Royal Australian Navy – Application of Statement of Principles – Appropriate diagnosis of psychiatric conditions – No factual basis for diagnosis of posttraumatic stress disorder – Posttraumatic stress disorder not war–caused – Decision under review affirmed
Loughrey and Repatriation Commission  AATA 88; 24/2/2014; Senior Member RG Kenny
Benefits and entitlements – Disability pension payable at 100% of the general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent the applicant from undertaking remunerative work for more than 8 hours per week – Accepted disabilities alone not responsible for inability to undertake remunerative work - Decision under review affirmed
Scott and Repatriation Commission  AATA 98; 27/2/2014; Senior Member GD Friedman
Veterans’ entitlements – ischaemic heart disease – hypertension – treatment by anti–inflammatory drugs – whether war–caused or defence–caused – decision affirmed
Simos and Repatriation Commission  AATA 110; 28/2/2014; Miss EA Shanahan
Disability pension claim – operational service – generalised anxiety disorder – hypertension – atrial fibrillation – complex hypothesis – asthma – severity of stressors experienced – exposure to multiple stressors post–service – reasonable hypotheses – reliability of evidence – decision affirmed