Recent decisions
The following Administrative Appeals Tribunal Written Reasons for Decisions have been recently handed down. Links to the full text of the Decisions at the AustLII website are provided.
This page is updated daily and is current to 2 February 2012.
Previous weeks' decisions are also available at AustLII.
Compensation | Freedom of Information | Immigration and Citizenship | Practice and Procedure |
Social Security | Taxation | Veteran's Affairs
Compensation
Sami and Telstra Corporation Limited [2012] AATA 41; 27/1/2012; Deputy President JW Constance
Safety, Rehabilitation and Compensation Act 1988 (Cth) - post traumatic stress disorder and adjustment disorder with depressed mood found to be compensable injuries - reasonable administrative action not carried out in a reasonable manner - permanent impairment - application numbers 2009/6004 and 2010/5573 set aside - application number 2011/0497 affirmed.
Freedom of Information
Matthews and Australian Securities and Investments Commission [2012] AATA 39; 25/1/2012; Deputy President SA Forgie
Fees and charges - estimate of charges and amounts fixed for charges - distinction between charge for request for access and charge for provision of access to documents - estimate for charge for provision of access should be made on realistic assessment of whether access to be given to all documents within ambit of request for access or whether exemptions to be claimed - notice of charge or charges.
Jurisdiction - applicant did not apply to Tribunal for review of reviewable decision but chose to pay deposit for charges and ASIC resumed consideration of request - applicant not provided with access to documents as charges unpaid - applicant requested further review of charges - ASIC stated its decision on that request conducted outside FOI Act - no basis to conduct a review outside the FOI Act and no power under the FOI Act as ASIC’s power of review exhausted at time of earlier reviewable decision.
Extension of time - extension of time not granted to applicant - closely regulated scheme for payment of charges that assumes an applicant either exercises review rights or pays the charges or deposit on account of charges - applicant’s decision to pay deposit meant that ASIC obliged to consider and decide his request and did so - extension refused.
Zwier and Commonwealth Director of Public Prosecutions and Australian Competition and Consumer Commission (Joined Party) [2012] AATA 52; 1/2/2012; Senior Member J Handley
Civil proceedings between ACCC and another resolved by consent before the Federal Court - terms of settlement included an agreement of facts stated as not being an admission outside the context of the civil proceedings - terms read to the Court by counsel for the ACCC and read by the presiding Judge - terms recited in published reasons - CDPP later commenced criminal proceedings - the agreement was identified in the Prosecutor's Case Statement and filed with the brief of evidence in the Federal Court - decision by Federal Court that the agreement was not an admission for the purposes of the prosecution but cross-examination over it would be permitted - whether conduct of the Respondents constituted a) a breach of express or implied undertakings not to use the agreement b) improper purpose or illegal object c) contempt of the Federal Court - whether documents exempt and privileged from production on the ground of legal professional privilege (LPP) or irrelevance - whether LPP displaced by Respondents' conduct including displacement on grounds of public interest - decisions affirmed.
Immigration and Citizenship
Tumai and Minister for Immigration and Citizenship [2012] AATA 53; 1/2/2012; Senior Member BJ McCabe
Visa cancellation - character grounds - primary considerations - protection of the Australian community - best interests of the child - decision under review substituted.
Visa Cancellation Applicant and Minister for Immigration and Citizenship [2012] AATA 42; 27/1/2012; Senior Member P McDermott
Cancellation of TY Subclass 444 visa on character grounds - Applicant New Zealand citizen - Protection of Australian community - Seriousness of criminal conduct - Risk of re-offending - Length of time applicant ordinarily resident in Australia before engaging in criminal activity - Family ties - Applicant failed character test - Circumstances weigh in favour of exercise of discretion to cancel visa - Decision under review affirmed.
Practice and Procedure
Farhat and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 38; 24/1/2012; Senior Member JF Toohey
Disability support pension - application for review withdrawn - application dismissed - second application lodged - whether power to reinstate application - no error apparent in dismissal - application could not be reinstated - whether applicant could make a fresh application - whether extension of time should be granted to lodge fresh application - no prospect of success of substantive application - extension of time refused.
Sims E-Recycling Pty Ltd and Minister for Sustainability, Environment, Water, Population and Communities [2012] AATA 50; 1/2/2012; The Hon B Tamberlin QC, Deputy President
Extension of time - whether it is reasonable in all the circumstances to grant the extension - explanation for delay - amount of delay - whether the application has possible merit - extension of time granted.
Stevens and Commissioner of Taxation [2012] AATA 34; 23/1/2012; Senior Member A Sweidan
Application for re-instatement - application previously withdrawn and deemed to be dismissed - applicant claims that withdrawal and hence deemed dismissal was in error - held no relevant error shown - re-instatement refused.
TDFM and Office of the Australian Information Commissioner [2012] AATA 37; 25/1/2012; Senior Member RM Creyke
Privacy Act 1988 (Cth) - complaint regarding request for information under Freedom of Information Act 1982 (Cth) - whether complaint solely about refusal of compensation falls within s 52 - whether an ‘investigation of a complaint’ - meaning of ‘complaint’, ‘investigation’, ‘act or practice’ - Application dismissed.
Social Security
Jones and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 54; 2/2/2012; Mr C Ermert, Member
AGE PENSION – whether member of a couple – whether illness separated couple - decision affirmed
MacNamara and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 40; 27/1/2012; Hon RJ Groom AO, Deputy President
Parenting payment single - whether house is principal home and therefore an exempt asset - meaning of “principal home” for the purposes of section 1118(1) of the Social Security Act 1991 - factors relevant in determining whether the house was the applicant’s “principal home” - meaning of “temporary absence” in section 11A(9)(a) of the Act - decision under review set aside.
Magliano and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 43; 30/1/2012; Senior Member N Bell
Higher Education - student enrolled in full-time courses with higher education provider - request for withdrawal not submitted - enrolment not withdrawn at census date - Student Learning Entitlements affected - whether grounds for special circumstances - special circumstances not established - decision affirmed.
Reed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 36; 25/1/2012; Deputy President RP Handley
Pensions - income maintenance period - calculation - redundancy payment - payment in lieu of notice - ordinary income - length - commencement date - decision under review set aside.
Taxation
Bell and Commissioner of Taxation [2012] AATA 45; 30/1/2012; Senior Member F O’Loughlin
Small business - CGT concessions - whether liabilities related to assets included in the maximum net asset value test. Penalties - whether recklessness - whether reasonable care taken - decision that the maximum net asset value test was not passed is affirmed - decision to impose penalty at the recklessness rate of 50 per cent is set aside and replaced with a decision to impose penalty at the 25 per cent rate for failing to take reasonable care.
Ma and Anor and Commissioner of Taxation [2012] AATA 47; 31/1/2012; Senior Member JL Redfern
Income tax - deemed dividends or ordinary income - whether assessments were excessive - payments to associated persons - whether children and relatives were employees - domestic or private arrangement - documentary evidence - wages not paid directly to children or relatives - trusts - burden of proof in taxation matters - recklessness - whether penalties should be remitted - decisions under review varied.
The Trustee for the R Ali Superannuation Fund and Commissioner of Taxation [2012] AATA 44; 30/1/2012; Senior Member FD O’Loughlin
Self managed superannuation fund - whether fund a complying superannuation fund - whether s 40 notice should have been issued - whether s 42A(5)(b) discretion should be exercised - Decision under review affirmed.
Veteran's Affairs
Nunn and Repatriation Commission [2012] AATA 46; 31/1/2012; Senior Member GD Friedman
Veterans’ entitlements - special rate of pension - soil and gravel supply business - post traumatic stress disorder and major depressive disorder - whether incapacity from war-caused injuries ‘alone’ prevented the veteran from undertaking remunerative work - decision under review set aside.
Rehn and Repatriation Commission [2012] AATA 48; 25/1/2012; Deputy President DG Jarvis, Lt Col R Ormston (Rtd), Member
Veterans' entitlements - operational service - dispute as to diagnosis of applicant’s condition - diagnosis not to be determined by Statement of Principles - held that applicant was suffering from post-traumatic stress disorder - decision under review set aside.
Stewart and Repatriation Commission [2012] AATA 56; 2/2/2012; Senior Member GD Friedman
Veterans’ entitlements – sleep apnoea – obesity – body mass index – decision under review set aside and substituted