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 29 January 2015.

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Barrington and Comcare [2015] AATA 29; 21/1/2015; The Hon Mr B Tamberlin QC, Deputy President

Commonwealth employee – normal weekly earnings – ‘relevant period’ – requirements – ‘regular’ – whether period of overtime should be included in calculation of normal weekly earnings – decision under review set aside and substituted


Chau and Australian Postal Corporation [2015] AATA 24; 19/1/2015; Senior Member JF Toohey

Back injury – liability accepted – whether original injury arose out of or in the course of employment – whether effects of injury had ceased – Tribunal not satisfied effects of injury had ceased – decision under review set aside


Howes and Comcare [2014] AATA 39; 28/1/2015; Dr M Denovan, Member

Liability accepted for physical condition – chronic neck and shoulder pain – intervertebral disc disorder cervical region – subacromial bursitis (right) – sprain of shoulder and upper arm – meaning of ‘in relation to’ – breast reduction – plastic surgery – purpose of the treatment – no requirement for treatment to permanently improve injury – test of reasonableness – medical treatment is to related to the accepted injury and reasonable to obtain in the circumstances – decision under review affirmed.


Kisso and Comcare [2015] AATA 35; 27/1/2015; Senior Member JF Toohey and Dr I Alexander, Member

Shoulder bursitis – whether claim for injury or disease – whether nature and conditions of employment caused or aggravated the condition – whether employment contributed to a significant degree to the applicant’s condition – decision under review affirmed

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Immigration and Citizenship

Linge and Minister for Immigration and Border Protection [2015] AATA 26; 21/1/2015; Deputy President SD Hotop

Application for Australian citizenship by conferral – applicant aged 17 years at time of application – applicant eligible to become Australian citizen – applicant did not satisfy residence requirement – departmental policy guidelines – applicant would not suffer significant hardship or disadvantage by having to satisfy residence requirement – applicant does not meet policy guidelines for grant of Australian citizenship – circumstances of applicant's case not sufficiently unusual as to warrant approval of application for Australian citizenship notwithstanding failure to meet policy guidelines – preferable decision to refuse to approve application for Australian citizenship – decision under review affirmed

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Practice and Procedure

Bates and Comcare [2015] AATA 25; 8/1/2015; Deputy President PE Hack SC

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Social Security

Chang and Secretary, Department of Social Services [2015] AATA 30; 22/1/2015; Senior Member PW Taylor SC

Pensions – disability support pension – whether the applicant’s impairment is of 20 points or more under the Impairment Tables – decision affirmed


Charrouf and Secretary, Department of Social Services [2015] AATA 38; 28/1/2015; Senior Member JF Toohey

Disability support pension – cancellation – intellectual disability – report provided by psychologist who did not assess applicant – report provided by psychiatrist who did not see the applicant– evidence of depression and anxiety – Job Capacity Assessments – debt raised – whether special circumstances – decision under review affirmed


Cooper; Secretary, Department of Social Services and [2015] AATA 41; 23/1/2015; Senior Member GD Friedman

Compensation preclusion period – whether special circumstances exist to shorten period – whether expenditure reasonable – application of the 50% rule – whether costs should be deducted


Fletcher and Secretary, Department of Social Services [2015] AATA 43; 28/1/2015; Senior Member CR Walsh

Youth allowance – qualification for youth allowance – activity test – undertaking full-time study – normal amount of full-time study – alternative meaning of normal amount of full-time study – debt due to the Commonwealth – write-off – waiver – debt not solely attributable to administrative error made by Centrelink – “no special circumstances” – decision under review affirmed


Hasan and Secretary, Department of Social Services [2015] AATA 31; 22/1/2015; Senior Member JF Toohey

Carer payment – carer allowance – child – claim by father – congenital heart disease – evidence that medical reports not genuine – evidence of moderate developmental delay – no reliable evidence of care needs – decision under review affirmed


Levchenko and Secretary, Department of Social Services [2015] AATA 20; 16/1/2015; Senior Member J Toohey

Social security – disability support pension – osteoarthritis – hypertension – cerebrovascular disease – obesity – psychological condition – whether conditions fully diagnosed, treated and stabilised – whether conditions rated 20 or more points – decision under review affirmed


Mitchell and Secretary, Department of Social Services [2015] AATA 28; Professor R McCallum AO Member

Parenting Payment – eligibility – residence requirements – Australian Citizen – whether Applicant was an Australian Resident at the time of the claim – decision affirmed


O’Leary and Secretary, Department of Social Services [2015] AATA 44; 29/1/2015; Deputy President PE Hack SC

Disability support pension – whether applicant has 20 points under the impairment tables – decision under review affirmed

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Raschta Coatings Pty Ltd as trustee for the Raschta Coatings Trust and Commissioner of Taxation [2015] AATA 34; 23/1/2015;  Deputy President DP Hack SC

Income tax and GST liability – assessments – whether assessments excessive – shortfall penalty – decisions under review set aside

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Veterans' Affairs

King and Repatriation Commission [2015] AATA 36; 27/1/2015; Senior Member J Handley

Applicant a member of crew of HMAS Sydney in 1971 when aged 17 years – engaged in operational service – fell down a stairway– applicant had asymptomatic pre-existing pars defects at L5 – back and leg pain immediately and following the fall – significant quantities of prescribed analgesia consumed – spondylolisthesis at L5/S1 diagnosed – incident not reported or treated until consulting with his general practitioner in 2010 – whether fall did occur – whether clinical onset of the injury occurred at the time of the fall – decision set aside and substituted


Smith and Repatriation Commission [2015] AATA 27; 21/1/2015; Deputy President SA Forgie

Veterans’ Affairs – remittal – general disability pension paid to veteran – application for increase in rate – accepted PTSD war-caused injury – whether veteran by reason of incapacity alone prevented from continuing to undertake remunerative work and so is suffering loss of salary or wages or earnings – veteran satisfied s 24(1)(c) – decision set aside

Veterans’ Affairs – interpretation of the law – differing roles assigned to courts and Tribunal – need for an administrative decision-maker to identify principles underlying conclusions of law in order to apply it in reaching decisions on related issues – examination of principles underlying separate judgments given by Full Court of Federal Court

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