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 26 March 2015.

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Compensation

Caplikas and Comcare [2015] AATA 170; 25/3/2015; Senior Member JF Toohey, Dr W Isles, Member

Knee injury – liability accepted – stem cell assisted arthroscopy – whether proposed surgery was reasonable medical treatment – evidence of promising results – decision under review affirmed

 

Greaves and Comcare [2015] AATA 177; 26/3/2015; Deputy President K Bean

Commonwealth employees – Whether Applicant continues to suffer effects of injury – Nature of injury suffered – Whether symptoms result from pre-existing degenerative condition – Decision under review affirmed.

 

Hartas and Telstra Corporation Limited [2015] AATA 147; 13/3/2015; Dr J Popple, Senior Member

Commonwealth employees – payment for permanent incapacity – payment adjusted for hours employee is able to earn – whether ability to earn affected by subsequent injury – compensation payable ‘as a result of an injury’ – ability to earn calculated but for subsequent injury – decision affirmed.

 

Johns and Comcare [2015] AATA 164; 20/3/2015; Senior Member GD Friedman

Australian Taxation Office – Law Interpretation Specialist – depressive disorder – breach of code of conduct – whether applicant entitled to compensation for incapacity – whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether aggravation of existing condition – decision under review affirmed

 

Thompson and Military Rehabilitation and Compensation Commission [2015] AATA 171; 25/3/2015; Deputy President PE Hack SC, Dr M Sullivan, Member

Where an injury to an employee results in death – rheumatic fever an accepted “injury” – contracted during military employment – evaluation of causal chain – relationship between rheumatic fever and later cardiac conditions – acute myocardial infarction – whether aortic dissection – paucity of imaging and post-mortem evidence – “uncommon condition” – decision under review affirmed

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Immigration and Citizenship

FTZK and Minister for Immigration and Border Protection [2015] AATA 155; 18/3/2015; Deputy President SA Forgie

Remittal from High Court – Convention and Protocol relating to Status of Refugees – whether applicant excluded from its protection by Article 1F(b) – whether there are serious reasons for considering that applicant committed kidnap and murder – decision set aside

 

Kurban and Minister for Immigration and Border Protection [2015] AATA 168; 24/3/2015; Professor R Deutsch, Deputy President

Whether Applicant of good character – Australian Citizenship Instructions – declaring offences on statutory declaration – gambling addiction – expired good behaviour bond – decision under review set aside and remitted

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Practice and Procedure

Bennett and Ors and Commissioner of Taxation [2015] AATA 144; 28/1/2015; The Hon. B Tamberlin QC, Deputy President

Referral to Federal Court on question of law – whether question in the form of a special case – absence of findings or agreement on facts – application refused.

 

De Los Santos-Aguilar and Migration Agents Registration Authority [2015] AATA 157; 19/3/2015; The Hon. B Tamberlin QC, Deputy President

Reinstatement – whether application for review was dismissed in error – whether discretion to reinstate application should be exercised – application reinstated

 

Mahaffy and Tax Practitioners Board [2015] AATA 173; 26/3/2015; Deputy President JW Constance

Application to dismiss proceedings – failure to comply with direction within reasonable time – application dismissed

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Social Security

Armao and Secretary, Department of Social Services [2015] AATA 146; 13/3/2015; Dr T Nicoletti, Senior Member

Pensions – disability support pension – cancellation – qualification for pension – whether the applicant’s impairment rating was 20 points or more – decision affirmed

 

Baumeister and Secretary, Department of Social Services [2015] AATA 149; 16/3/2015; Professor R McCallum AO, Member

Age pension – Pension Bonus Scheme – whether pension should be paid at single rate or member of a couple rate – member of a couple test – decision under review affirmed

 

Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158; 19/3/2015; Senior Member JF Toohey

Social security – disability support pension – ulcerative colitis – diabetes mellitus – glaucoma – hypertension – cardiac disease – whether conditions fully diagnosed treated and stabilised – impairment ratings – program of support – active participation – exemptions – decision under review affirmed

 

Curtis-Smith and Secretary, Department of Social Services [2015] AATA 152; 17/3/2015; Dr T Nicoletti, Senior Member

Pensions – age pension – whether the applicant was required to be an Australian resident when he made a claim for age pension – whether applicant was an Australian resident – decision affirmed.

 

Fidanza and Secretary, Department of Social Services [2015] AATA 150; 16/3/2015; Dr M Denovan, Member

Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Fibromyalgia – Decision under review affirmed.

 

Kormali and Secretary, Department of Social Services [2015] AATA 154; 18/3/2015; Senior Member JF Toohey

Disability support pension – psychiatric impairment – evidence of serious impairment – whether fully diagnosed during claim period – whether fully treated and stabilised during claim period – decision under review affirmed

 

Madej and Secretary, Department of Social Services [2015] AATA 162; 20/3/2015; Mr C Ermert, Member

Disability support pension – impairment tables – impairment rating – fully treated – fully stabilised – whether 20 impairment points − decision affirmed

 

McMurray and Secretary, Department of Social Services [2015] AATA 159; 19/3/2015; Mr C Ermert, Member

Family assistance benefits – overpayment – debt owed to the Commonwealth – administrative error – debt attributable solely to error made by the Commonwealth – received in good faith – no financial hardship – no special circumstances – decision affirmed

 

Norman and Secretary, Attorney-General’s Department [2015] AATA 92; 20/2/2015; Deputy President JW Constance

Victims of terrorism payment – secondary victim of a declared overseas terrorist act – close family member – partner – whether Applicant a member of a couple with the deceased – whether relationship was a de facto relationship – decision set aside and remitted

 

Saad and Secretary, Department of Social Services [2015] AATA 160; 19/3/2015; Professor R McCallum AO, Member

Disability support pension – wife pension – cancellation of payments – qualification for indefinite portability – decision affirmed

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Taxation

Anderson and Commissioner of Taxation [2015] AATA 167; 23/3/2015; Senior Member BJ McCabe

GST Assessment and Penalty Decisions – Applicant’s liability to pay GST – Trustee of the trust is separate entity to trustee in personal capacity – Trustee not an ‘incapacitated entity’ for purposes of tax legislation – Retirement of individual as trustee does not affect liability of trustee in that capacity – Trustee of the trust liable to pay GST – Question of recovery not before Tribunal – Objection decision varied in light of concessions made by parties – Decided in substitution that assessment for quarter ended 31 December 2009 reduced to $21,446 – Assessment for quarter ended 31 March 2010 reduced to nil – Total administrative penalty for quarters ended 31 December 2009 and 31 March 2010 reduced to nil. 

 

Rigoli and Commissioner of Taxation [2015] AATA 169; 24/3/2015; Senior Member E Fice

Income tax and related legislation – Returns and assessments – Assessments – Default, special and arbitrary assessments – Assessments made where no tax return provided

Administration of federal tax legislation – Objections, reviews and appeals – Review or appeal – Evidence – Onus of proof that taxation decision excessive or incorrect – Taxpayer to prove assessment excessive – Failure to discharge onus

Administration of federal tax legislation – Objections, reviews and appeals – Review or appeal – Review by Administrative Appeals Tribunal and its predecessors – Nature of review – Administrative Appeals Tribunal reviews objection decision

 

Ting and Commissioner of Taxation [2015] AATA 166; 23/2/2015; Deputy President FJ Alpins

Income tax – allowable deductions – whether expenses incurred in undertaking post-graduate studies in management were incurred “in gaining or producing” applicant’s assessable income as school teacher – Income Tax Assessment Act 1997 (Cth) s 8-1

Administrative penalty – false or misleading statement – whether shortfall amount resulted from a failure to take reasonable care – whether remission of penalty warranted

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Veterans' Affairs

Stewart and Repatriation Commission [2015] AATA 148; 13/3/2015; Dr P McDermott RFD, Senior Member

Widow’s pension – Reasonable hypothesis connecting death with service – Ischaemic heart disease – Hypertension – Hypothesis considered reasonable – Applicant entitled to widow’s pension – Decision set aside.

 

Woodall and Repatriation Commission [2015] AATA 163; 20/3/2015; Senior Member J Handley

Applicant made redundant from his employment in 2008 – subsequently applied for 70 jobs without success – granted temporary special rate pension in 2009 which ceased in 2010 – payments reverted to 100 per cent of general rate – claim for special rate rejected by respondent and VRB – heard and affirmed by AAT – appeal to Federal Court – remitted by consent of both parties to the AAT after Full Court decision in Smith v Repatriation Commission – focus on re-hearing on s 24(2)(b) – previous AAT decision reversed – decision under review set aside.

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