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 February 2015.

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Child Support

Confidential and Principal Member, Social Security Appeals Tribunal and Anor [2015] AATA 100; 23/2/2015; Ms R Perton, Member

Application to extend time to apply to the Social Security Appeals Tribunal – SSAT refused extension – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – whether application has possible merit – extension of time permitted

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Civil Aviation

O’Brien and Civil Aviation Safety Authority [2015] AATA 93; 20/2/2015; The Honourable Justice Benjamin, Dr W Isles, Member

Progression from co-pilot to captain – progression from co-pilot to pilot in command – progression from first officer to officer in command – colour vision deficiency (CVD) – protanopia – protanope – Air Transport Pilot (Aeroplane) Licence (ATPL) – Commercial Pilot (Aeroplane) Licence (CPL) – conditions imposed on class 1 Civil Aviation medical certificate –conditions imposed on applicant – Colour Assessment and Diagnosis (CAD) test – Precision Approach Path Indicator (PAPI) – Pseudo-isochromatic Plates (PIP) – Ishihara plates – lantern tests – applicant does not meet medical standard – failure to meet medical standard not likely to endanger the safety to air navigation – decision varied – conditions attached to class 1 Civil Aviation medical certificate varied – only valid for operations within Australia – applicant not permitted to conduct night time operations other than as or with qualified co-pilot – applicant must disclose colour vision deficiency to specified persons – decision varied

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Clifford and Military Rehabilitation and Compensation Commission [2015] AATA 86; 19/2/2015; Deputy President SD Hotop

Commonwealth employees – applicant commenced National Service in Australian Army in July 1966 – applicant medically discharged from National Service in September 1966 by reason of bilateral hearing loss – applicant claimed compensation for hearing loss in September 2012 – respondent accepted liability to pay compensation to applicant for bilateral hearing loss sustained in September 1966 – applicant claimed permanent impairment compensation in respect of bilateral hearing loss – Tribunal not satisfied that applicant’s bilateral hearing loss causally related to National Service – applicant not entitled to permanent impairment compensation for bilateral hearing loss – decision under review affirmed

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Vissenjoux and Australian Securities and Investments Commission [2015] AATA 98; 24/2/2015; Senior Member J Handley

Sequestration order made against applicant’s estate on 28 May 2013 – applicant held a financial services representative license – applicant also self-employed as a home builder – debts from that business proved at $994,940 – banning order for three years because applicant insolvent under administration – responsibility of the respondent to regulate the financial services industry – importance of consumer confidence in licensed financial services providers – decision affirmed

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Immigration and Citizenship

Hasib and Minister for Immigration and Border Protection [2015] AATA 82; 13/2/2015; Senior Member CR Walsh

Eligibility for citizenship by conferral – “good character” requirement – applicant convicted in 2007 of 10 offences relating to credit card fraud, being “serious” offences under the Australian Citizenship Instructions – applicant remained in Australia as an unlawful non-citizen for over a year following cancellation of his student visa – mitigating factors outweigh applicant’s behaviour – decision under review set aside and substituted

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Industry and Science

Automotive Components Limited (Receivers and Managers Appointed) (In Liquidation) and Secretary, Department of Industry and Science [2015] AATA 79; 13/2/2015; Deputy President SA Forgie

Automotive Transformation Scheme – ATS participant – automotive component producer – deregistered in January 2014 on basis that unlikely to meet ongoing conditions of its registration as an ACP in 2013 ATS year – applicant registered in national interest from 1 January 2012 to 31 December 2013 and not required to meet production volume and value conditions – whether production volumes and values assessed by reference to 2013 ATS year or 2014 ATS year – production value is total revenue of sales of automotive components produced in preceding 12 months – condition to be met in each ATS year following the ATS year in which the registration takes effect and so in 2013 ATS year – decision affirmed

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Practice and Procedure

Cameron and Secretary, Department of Human Services [2015] AATA 62; 2/2/2015; Senior Member JF Toohey

Freedom of Information – request for information outside the scope of FOI legislation – whether application for review frivolous – whether application should be dismissed –– no utility in application proceeding – application dismissed


Cassin and Secretary, Department of Employment [2015] AATA 84; 18/2/2015; Senior Member BJ McCabe

Application for Extension of Time – Reasonable excuse for delay – Merits of the case – Liquid asset waiting period – Legislative formula – No severe financial hardship – Unlikely to succeed at substantive hearing – Application for extension of time refused.


Gallway and Australian Postal Corporation [2015] AATA 88; 18/2/2015; Ms S Taglieri, Member

Proceedings – Application to reopen case to tender evidence – Counsel failed to tender documents – Evidence has some evidentiary value – Whether in the interests of justice – Prejudice to the Respondent can be cured – Application allowed.


Iyengar and Commissioner of Taxation [2015] AATA 80; 16/2/2015; Dr J Popple, Senior Member

Income tax – reviewable objection decision – stay order sought – whether Tribunal has jurisdiction to issue a stay order for an objection decision – stay application refused.


Tiplady and Repatriation Commission [2015] AATA 81; 11/2/2015; Senior Member BJ McCabe

Jurisdiction – whether there is a reviewable decision – date of effect of pension – earlier decision of the Tribunal – no jurisdiction

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Social Security

Daoud and Secretary, Department of Social Services [2015] AATA 69; 23/1/2015; Senior Member JF Toohey

Social security – disability support pension – back condition – psychological condition – Tribunal not satisfied conditions fully diagnosed treated and stabilised – decision under review affirmed


Liang and Secretary, Department of Social Services [2015] AATA 97; 23/2/2015; Deputy President JW Constance

Age pension – work bonus provisions – whether employment income of partner employment income in recipients hands for purposes of work bonus – decision affirmed


McDonald and Secretary, Department of Social Services [2015] AATA 90; 20/2/2015; Mr I Thompson, Member

Disability Support Pension – whether applicant has severe impairment – whether applicant has a continuing inability to work – no impairment attracting 20 point rating – no participation in program of support with a designated provider – decision under review affirmed.


Mladenov and Secretary, Department of Social Services [2015] AATA 99; 24/2/2015; Senior Member E Fice

Pensions, payments and allowances – Disability support pension – suspension and cancellation – suspension due to employment

Pensions, payments and allowances – unemployment allowances – qualification – disqualification due to employment

Overpayments and debt recovery – amounts recoverable – notification of change in circumstances – no notification by applicant of employment

Overpayments and debt recovery – Waiver of debt – generally


Russell and Secretary, Department of Social Services [2015] AATA 91; 20/2/2015; Senior Member G Ettinger

Overpayment of DSP – failure to declare partner’s income in full – certain administrative error of the Commonwealth – not sole administrative error – decision under review affirmed.


Saric and Secretary, Department of Social Services [2015] AATA 87; 19/2/2015; Dr P McDermott, Senior Member

Disability Support Pension – unlimited portability – cancellation of DSP – decision under review affirmed.


Treloar and Secretary, Department of Social Services [2015] AATA 94; 23/2/2015; Dr C Ermert, Member

Mobility allowance – voluntary work – 32 hours in every four weeks – ability to use public transport without substantial assistance – decision affirmed

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Bryxl Pty Ltd as Trustee for the Kypu Trust and Commissioner of Taxation [2015] AATA 89; 19/2/2015; Senior Member E Fice

Taxes and Duties – Goods and Services Tax – Basic and special rules – Registration

Taxes and Duties – Goods and Services Tax – Basic and special rules – Supplies and acquisitions – Basic rules – Creditable acquisitions – Carrying on an enterprise – land development – no land acquisitions made

Taxes and Duties – Administration of federal tax legislation – Penalties, offences and prosecutions – Particular penalties and offences – False or misleading statements or records – Penalty – Where recklessness as to operation of taxation law – Claim for GST input tax credits

Taxes and Duties – Administration of federal tax legislation – Australian business numbers – Deregistration

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Jays and Minister for Infrastructure and Regional Development [2015] AATA 101; 25/2/2015; Deputy President PE Hack SC

Motor vehicle importation – nonstandard vehicle without identification plate – road vehicle – meaning of “motor vehicle” “road motor vehicle” “designed” “solely or principally” for the transport on “public roads” of people, animals or goods – principles of statutory construction – decision set aside and remitted


Tormey and Minister for Infrastructure and Regional Development [2015] AATA 104; 26/2/2015; Deputy President IR Molloy

Motor Vehicles – Application to import a non-standard road vehicle which does not have an identification plate – Requirements under Regulation 13(1) Motor Vehicles Standards Regulations 1989 (Cth) not met – Exercise of discretion under Regulation 11 not warranted – Decision under review affirmed.

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Veterans' Affairs

Jones and Repatriation Commission [2015] AATA 96; 23/2/2015; Mr C Ermert, Member

Incapacity from war-caused injuries alone – decision set aside and remitted to the Respondent

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