AAT Decisions
Recent decisions
Week ending 10 March 2010
The following Administrative Appeals Tribunal Reasons for Decisions
have been recently handed down. Links to the full text of the
Decisions at the AustLII web site are provided when available.
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Compensation | Immigration and Citizenship | Social Security | Taxation
Compensation
Whitham and Comcare
[2010] AATA 161; 9/3/2010; Senior Member MD Allen, Senior Member A Britton, Dr J Campbell, Member
WORKERS COMPENSATION - Application for payment for permanent impairment. Degree of permanent impairment assessed at 20% but possibility rehabilitative treatment would decrease degree of permanent impairment. Interim award of 10% permanent impairment, pursuant to s25 of Safety, Rehabilitation and Compensation Act 1988, and direction for further investigation regarding rehabilitative treatment.
Held:
- In matter 2008/4948 the decision under review is AFFIRMED.
- In matter 2009/5144 the decision under review is SET ASIDE and the Tribunal remits this matter to the Respondent with the Direction that, pursuant to section 25 of the Safety, Rehabilitation and Compensation Act 1988, the Applicant is entitled to payment of compensation for permanent impairment at the interim rate of 10% AND THAT further investigations are to be undertaken by the Respondent to determine what, if any, reasonable rehabilitation treatment might be undertaken by the Applicant.
- The question of costs is adjourned to a date to be fixed.
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Immigration and Citizenship
Pak and Department of Immigration and Citizenship
[2010] AATA 157; 2/3/2010; Justice RJ Buchanan, Presidential Member
MIGRATION - application for Australian citizenship - applicant lived in Australia for lengthy virtually unbroken period and completed primary and secondary education in Australia - primary considerations applicable - whether exceptional or very unusual circumstances exist to depart from policy requirements.
Held: The Tribunal affirms the decision of the Department of Immigration and Citizenship made on 2 May 2009.
Youm and Minister for Immigration and Citizenship
[2010] AATA 158; 3/3/2010; Senior Member AK Britton
IMMIGRATION & CITIZENSHIP - refusal to grant citizenship - applicant between 16 and 18 years of age - applicant does not meet policy requirements - discretion to approve application for conferral of citizenship - circumstances not unusual or exceptional - decision under review affirmed
Held: The decision under review is affirmed.
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Social Security
Bliznakovski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 159; 5/3/2010; Justice C Dawe, Senior Member K Bean
SOCIAL SECURITY - pensions, benefits and allowances - Age Pension -"compensation affected payment" - redemption of periodic payments - application of s 1164 of Social Security Act 1991 - whether redemption calculated by reference to a period - whether provisions operate retrospectively in relation to applicant - whether provisions operate harshly or unfairly in precluding applicant from receipt of Age Pension when redemption only intended to compensate him for lost earnings to age 65 - s 1164 applies - though not necessary to decide, special circumstances also exist - decision under review set aside.
Held:
- The decision under review is set aside.
- The matter is remitted to the respondent for determination and calculation of Mr Bliznakovski’s entitlements on the following bases:
(a) that s 1164 of the Social Security Act 1991 applied to the economic loss component of the lump sum redemption payment received by Mr Bliznakovski in 2001, being an amount of $645,000 (the redemption amount); and
(b) the redemption amount was calculated by reference to the period commencing when Mr Bliznakovski entered into the redemption agreement, on 9 August 2001, and ending on his 65th birthday, being 12 January 2007
Dasecke and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 163; 9/3/2010; Senior Member RG Kenny
SOCIAL SECURITY - Benefits and entitlements - Disability support pension - Scheuermann’s disease constituting physical impairment - Condition not permanent as not fully treated and stabilised - No allocation of an impairment rating - Qualification requirements for disability support pension not met - Decision affirmed.
Held: The Tribunal affirms the decision under review.
Lane and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 165; 9/3/2010; Senior Member RG Kenny
SOCIAL SECURITY - Benefits and entitlements - Cancellation of disability support pension - Impairment from alcohol dependence, mood disorder and multiple drug dependence - Conditions not permanent as not fully diagnosed, treated and stabilised - No allocation of an impairment rating - Qualification requirements for disability support pension not met on cancellation date - Decision affirmed.
Held: The Tribunal affirms the decision under review.
Van Kampen and Anor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 164; 9/3/2010; Senior Member RG Kenny
SOCIAL SECURITY - Benefits and entitlements - Disability support pension and carer payment - Calculation of rates of payment based on the combined value of the parties’ assets - Calculation of rates not subject to terms of financial agreement - Decision affirmed.
Held: The Tribunal affirms the decision under review.
Wharton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 162; 9/3/2010; Senior Member RG Kenny
SOCIAL SECURITY - Benefits and entitlements - Disability support pension - House treated as principal home (exempt asset) - Majority of time spent living on boat - Boat to be treated as principal home - Overpayment of disability support pension - Debt due to the Commonwealth - No basis for writing off debt - No basis for waiver of debt - Decision affirmed
Held: The Tribunal affirms the decision under review.
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Taxation
Harrison and Commissioner of Taxation
[2010] AATA 155; 2/3/2010; Senior Member BH Pascoe
GOODS AND SERVICES TAX - brothel owner - whether providing room hire only - whether providing sexual services - Business Activity Statement ignored cash payments - onus of proof not discharged
Held: The Tribunal affirms the decisions under review.
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