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 25 May 2015.
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The Mother and Child Support Registrar and The Father (Joined Party)  AATA 330; 15/5/2015; Senior Member G Ettinger
Shared care – dispute over findings of the Child Support Agency and SSAT – appeal by the mother to the AAT regarding the findings of the SSAT – decision under review varied.
Fadlalla and Civil Aviation Safety Authority  AATA 331; 15/5/2015; Senior Member E Fice, Mr W Evans, Member
Regulation of air navigation – Pilots – Cancellation of licence – Breach of regulations – Applicant held Private Pilot (Aeroplane) Licence and Student Pilot Licence – Licences cancelled – Whether applicant failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft – Whether applicant a fit and proper person to hold licences – Decision under review set aside
Bayani and Australian Postal Corporation  AATA 342; 19/5/2015; Senior Member J Handley
Applicant has chronic neck and left shoulder pain – treatment from 2004 to date principally has been physiotherapy – denial by respondent of liability for cost of ongoing physiotherapy treatment and gymnasium program – physiotherapy has provided temporary symptomatic relief only – treatment has not alleviated the injuries – Clinical Framework For The Delivery of Health Services considered – whether applicant should be instructed in self-management strategies for relief of pain – ongoing physiotherapy and gymnasium is not reasonable treatment – decision affirmed
Kennedy and Comcare  AATA 334; 18/5/2015; Deputy President PE Hack SC
Definition of “injury” – “connected with his or her employment” – terms of representations – whether wilful and false – adjustment disorder with depression and anxiety – failure to disclose previous psychiatric history – representations knowingly false – decisions under review affirmed.
Matthews and Commonwealth Bank of Australia  AATA 344; 15/5/2015; Deputy President PE Hack SC, Dr M Sullivan, Member
Whether trauma to elbow – reliability of applicant’s account – inconsistency between first accounts and evidence – decisions affirmed
Vestas – Australian Wind Technology Pty Limited and Chief Executive Officer of Customs  AATA 348; 21/5/2015; Deputy President SA Forgie, Mr C Ermert, Member
Tariff concession order – gear boxes for wind turbines – whether substitutable goods – respondent concedes no substitutable goods – whether substitutable goods can be deemed when conceded there are none – statutory interpretation – core criteria met – decision set aside
Jafferi and Minister for Immigration and Border Protection  AATA 347; 21/5/2015; Senior Member RW Dunne
Application for Australian citizenship – application refused on character grounds – criminal record – whether applicant has reformed and is now of good character – decision under review set aside and remitted.
Soueid and Secretary, Department of Employment  AATA 320; 14/5/2015; Senior Member JF Toohey
Fair Entitlements Guarantee – real estate agent – whether applicant entitled to payment of account of wages – wages entitlement period – governing instrument – meaning of work done – decision under review affirmed
Craig and Commissioner of Taxation  AATA 339; 21/4/2015; Professor R Deutsch, Deputy President
Jurisdiction – whether Tribunal has jurisdiction to review purported decision – objection to Australian government expenditure of Applicant’s income tax as outlined in Tax Receipt issued in conjunction with Notice of Assessment – whether purported decision is a reviewable objection decision – meaning of ‘assessment’ – not reviewable as Tax Receipt does not form part of assessment – application for review dismissed
Devkota and Australian Skills Quality Authority  AATA 356; 22/5/2015; Senior Member G Ettinger
Application for extension of time in which to lodge application for review of decision of ASQA – Applicant seeking compensation from various Commonwealth agencies – Tribunal has no jurisdiction in those matters – merits of case – extension of time refused.
Dunn and Secretary, Department of Defence  AATA 351; 11/5/2015; Senior Member BJ McCabe
Dismissal application – no prospect of meaningful review – no jurisdiction to review aspect of decision which constitutes sole dispute in proceedings – meaning of expression “frivolous and vexatious” – application dismissed.
Tually and Secretary, Department of Social Services  AATA 354; 22/5/2015; Deputy President SD Hotop
Jurisdiction – application to Social Security Appeals Tribunal (SSAT) for review of decision of authorised review officer – decision of delegate of Principal Member of SSAT dismissing application for review – dismissal power conferred on Principal Member not on SSAT – decision dismissing application for review not made by SSAT – decision of delegate of Principal Member dismissing application for review not reviewable by Administrative Appeals Tribunal (AAT) – AAT does not have jurisdiction in respect of application for review of decision of delegate of Principal Member of SSAT
Anderson-Clemence and Secretary, Department of Social Services  AATA 329; 15/5/2015; Deputy President PE Hack SC
Disability support pension – Post-Concussion Syndrome – adjustment disorder – whether “permanent” – whether applicant’s impairment fully diagnosed, treated and stabilised – functional ability uncertain – future treatments recommended – relevant timeframe – medical evidence inconsistent – medical evidence insufficient – decision under review affirmed
Arkawazi and Secretary, Department of Social Services  AATA 358; 25/5/2015; Mr S Webb, Member
Pensions – Disability Support Pension – impairment rating – whether conditions are permanent – requirement for 20 impairment points not met – decision affirmed
Hananeia and Secretary, Attorney-General’s Department  AATA 319; 14/5/2015; Deputy President SD Hotop
Australian Victim of Terrorism Overseas Payment (AVTOP) – 2002 Bali bombings declared by Prime Minister to be "declared overseas terrorist acts" – applicant in hotel in Kuta, Bali at time of bombings – applicant attended place of bombing 15 minutes after explosion – applicant subsequently contracted major depressive illness and post traumatic stress disorder – applicant not "in the place where the terrorist act occurred" – applicant not qualified for AVTOP – decision under review affirmed
Krivoshev and Secretary, Department of Employment  AATA 341; 19/5/2015; Dr I Alexander, Member
Allowances – newstart allowance – reconnection failure – penalty for reconnection failure – cancellation of newstart allowance – failure to re-engage with disability service provider – decisions affirmed
Nakhla and Secretary, Department of Social Services  AATA 333; 15/5/2015; Dr I Alexander, Member
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 – decision affirmed
Pakzad and Secretary, Department of Employment  AATA 337; 18/5/2015; Deputy President FJ Alpins
Newstart allowance – compensation payment for injury at work – preclusion period during which allowance not payable – discretion to treat whole or part of compensation payment as not having been made – whether “special circumstances” – whether appropriate to exercise discretion – decision affirmed
Payne and Secretary, Department of Social Services  AATA 336; 18/5/2015; Mr C Ermert, Member
Disability support pension – whether the Applicant’s impairment attracts 20 points – decision affirmed
Woolcock and Secretary, Department of Social Services  AATA 340; 18/5/2015; Dr P McDermott RFD, Senior Member
Pensions, benefits and allowances – rent allowance – change in circumstances – when applicant informed Centrelink – backdating of benefits – benefits backdated to date when Centrelink informed of change in circumstances – decision under review affirmed
Senior and Commissioner of Taxation  AATA 353; 22/5/2015; Professor R Deutsch, Deputy President
Objection decisions – private ruling – lump sum payment – decision affirmed
Shord and Commissioner of Taxation  AATA 355; 21/5/2015; Senior Member CR Walsh
Whether taxpayer “resident of Australia” – employment overseas as oilfield diver and supervisor – income derived from foreign sources – whether taxpayer “resides” in Australia – “domicile” of taxpayer – whether taxpayer’s “permanent place of abode” outside Australia – whether “foreign source income” of taxpayer exempt – whether taxpayer entitled to foreign tax offsets – whether shortfall interest charge and shortfall penalties should wholly or partly be remitted – objection decision affirmed
Cleary and Repatriation Commission  AATA 352; 21/5/2015; Senior Member BJ McCabe
Application for widow’s pension – claim that veteran’s death war-caused – contention that veteran’s smoking habit increased after operational service in Vietnam – material before Tribunal does not raise reasonable hypothesis connecting veteran’s death with operational service – decision under review affirmed.
Fraser and Repatriation Commission  AATA 345; 20/5/2015; Senior Member E Fice
Entitlements – Preliminary matters – Whether veteran incapacitated from a defence-caused injury or a defence-caused disease – Pensions for veterans – General rate – Veteran claimed conditions of hiatus hernia, neck and head injuries, lumbar spondylosis and cervical spondylosis were defence-caused – Statement of Principles not satisfied – Decisions under review affirmed
Harris and Repatriation Commission  AATA 349; 21/5/2015; Senior Member BJ McCabe
Intermediate rate of pension – assessment of whether incapacity arising from war-caused condition alone prevents continuance of remunerative work
Winter and Repatriation Commission  AATA 350; 21/5/2015; Senior Member BJ McCabe, Dr M Sullivan, Member
Veteran’s death from aortic stenosis and/or ischaemic heart disease – hypothesis attributing fatal heart condition(s) to presence of hypertension – development of veteran’s drinking habit – temporal and causal connection to operational service – decision under review set aside – decided in substitution veteran’s death was war-caused.