AAT Decisions

Recent decisions
Week ending 1 July 2009

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. AAT Decisions on AustLII are updated daily.

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Previous weeks' decisions are available at http://www.austlii.edu.au/au/cases/cth/aat/recent.html.

Compensation | Corporations | Freedom of Information | Health Insurance | Immigration and Citizenship | Mutual Recognition | Practice and Procedure | Social Security | Taxation | Veterans' Affairs

Compensation

Crossman and Comcare
[2009] AATA 469; 26/6/2009; Senior Member KS Levy RFD, Dr GJ Maynard, Brigadier (Rtd), Member

WORKERS' COMPENSATION - Meaning of "disease" and "injury" - Definitions of "disease" and "injury" are mutually exclusive - Hypertension, alcoholic liver disease and alcohol dependence contributed to in a material degree by employment - Those conditions satisfy the definition of "disease" - Reviewable decision set aside and substituted in respect of those conditions.

Held: The Tribunal:

1. affirms the decision in relation to diverticular disease;
2. affirms the decision with respect to reflux oesophagitis;
3. affirms the decision with respect to obesity;
4. sets aside the decision with respect to hypertension and substitutes a decision that hypertension is a contributing factor to Mr Crossman's alcohol dependence;
5. sets aside the decision with respect to alcoholic liver disease and substitutes a decision that alcoholic liver disease is also related to Mr Crossman's alcohol dependence;
6. sets aside the decision with respect to alcohol dependence and substitutes a decision that workplace factors made a substantial and material contribution to Mr Crossman's condition of alcohol dependence; and
7. remits the matter to the Respondent for the assessment of compensation.

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Corporations

Eikelboom and Australian Securities and Investments Commission
[2009] AATA 474; 19/6/2009; The Hon Robert Nicholson, Deputy President

Corporations law - financial services law - application for review of banning order - applicant acting as authorised representative - ban imposed for three years - applicant found to have failed to comply with financial services law in not providing advice which was reasonable and appropriate in the circumstances- banning order appropriate - no finding applicant would not comply in the future - consideration of factors in regulatory guide 98 - order imposed for 2 years.

Held: The decision under review dated 19 December 2007 be varied by substituting 'two years' for 'three years' and otherwise be affirmed.

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Freedom of Information

Van Der Boor and Centrelink
[2009] AATA 460; 24/6/2009; Mr S Webb, Member

FREEDOM OF INFORMATION - searches - adequate searches conducted - irrelevant material - decision affirmed

Held: The decision under review is affirmed.

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Health Insurance

Mukherjee and Medicare Participation Review Committee
[2009] AATA 484; 30/6/2009; Senior Member J Kelly

HEALTH INSURANCE - Medicare Participation Review Committee - Applicant convicted of offences for knowingly making false statements - Determination disqualifying applicant from receiving Medicare benefits for three months - Medical and other evidence considered - Held applicant not entirely unaware of his actions - Decision affirmed

Held: The reviewable decision is affirmed.

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Immigration and Citizenship

Wang and Minister for Immigration and Citizenship
[2009] AATA 486; 30/6/2009; Senior Member J Kelly

IMMIGRATION AND CITIZENSHIP - Business Skills Visa - Cancellation -  Secondary visa holder cancellation - Held did not obtain substantial interest in eligible business in Australia and did not make genuine effort  - Residual discretion not exercised - Held no extreme hardship in the case of the secondary visa holder - Decisions affirmed 

Held: In proceedings 2008/1820, I affirm the decision made by the delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Wang's subclass 127 business visa under s 134(1) of the Act.

In proceedings 2008/1821, I affirm the decision made by the delegate of the Minister to cancel Ms Wang's subclass 127 business visa under s 134(4) of the Act.

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Mutual Recognition

Shaboodien and Dental Board of Western Australia
[2009] AATA 455; 10/2/2009; Senior Member S Penglis

Mutual Recognition - whether applicant entitled to be granted registration in the occupation of orthodontist in Western Australia by reason of his registration as an orthodontist in Victoria, his deemed registration, by mutual recognition as a dentist (restricted to the practice of orthodontics) in New South Wales or by reason of his actual registration, by mutual recognition, as a dentist (subject to a condition that the applicant restricts his practice to orthodontics) in New South Wales - registration as "orthodontist" in Victoria not substantially equivalent to registration as "dentist" in Western Australia - registration as dentist (restricted to the practice of orthodontics) held substantially equivalent to registration as dentist in Western Australia (with imposition of an identical condition) - directions made by Tribunal as to provision of further submissions as to whether the Tribunal may look behind the New South Wales registration, if so what conclusions ought to be reached as to that registration and whether the Tribunal may and, if it may, ought refuse to mutually recognise the New South Wales registration if it were to conclude that the registration was granted in error

Held:

1. Within 14 days the respondent do lodge with the Tribunal, and provide a copy to the applicant, its written submissions with respect to the Further Matters (as defined in the Tribunal's Reasons for Decision).
2. Within 14 days from his receipt of the respondent's submissions, the applicant do lodge with the Tribunal, and provide a copy to the respondent, his written submissions with respect to the Further Matters.

Shaboodien and Dental Board of Western Australia
[2009] AATA 456; 23/4/2009; Senior Member S Penglis

Mutual Recognition - applicant registered in New South Wales as "dentist" (restricted to practice of orthodontics) as a result of the New South Wales Dental Board "mutually recognising" the applicant's registration as an "orthodontist" in Victoria - registration as "orthodontist" in Victoria previously held by Tribunal not to be substantially equivalent to registration as "dentist" in Western Australia - registration as dentist (restricted to the practice of orthodontics) in New South Wales provisionally held substantially equivalent to registration as a "dentist" in Western Australia (with imposition of identical conditions) - consideration of whether the Tribunal may look behind the New South Wales registration to determine whether the registration was granted in error and, if so, with what consequences - held that the Tribunal has no power to go behind the New South Wales registration - consideration given to whether declaration ought be made pursuant to s31(2) of the MR Act and as to its effect - held that New South Wales Dental Board ought to be given notice and afforded an opportunity to be heard  

Held:

1. Within 14 days of the date of this decision, the respondent do provide to the New South Wales Dental Board copies of the Tribunal's two Reasons for Decision in this matter.
2. The New South Wales Dental Board shall have 28 days (or such further period as the Tribunal may direct upon application by the New South Wales Dental Board) to provide written submissions to the Tribunal (should it wish to do so) with respect to whether a declaration ought be made by the Tribunal pursuant to section 31(2).
3. In the event that the New South Wales Dental Board provides written submissions to the Tribunal, the applicant and respondent are to lodge with the Tribunal, providing copies to each other, any written submissions in response within 14 days of their respective receipt of the New South Wales Dental Board's written submissions (copies of which will be provided to them by the Tribunal).
4. The submissions provided should also deal with how (if at all) any declaration which the Tribunal may make may impact upon the mutual recognition of the applicant's New South Wales registration.

Shaboodien and Dental Board of Western Australia
[2009] AATA 473; 26/6/2009; Senior Member S Penglis

Mutual recognition - applicant registered in New South Wales as "dentist" (restricted to practice of orthodontics) as a result of the New South Wales Dental Board "mutually recognising" the applicant's registration as an "orthodontist" in Victoria - registration as "orthodontist" in Victoria previously held by Tribunal not to be substantially equivalent to registration as "dentist" in Western Australia - submissions provided by Dental Board of New South Wales referring to specific provisions in Public Health Act New South Wales permitting "restricted dental practices" - no equivalent registration available under any legislation operating in Western Australia - held that applicant's registration in New South Wales not substantially equivalent to registration as "dentist" (restricted to the practice of orthodontics) - Tribunal satisfied that declarations to that effect ought be made pursuant to s32(2) - the respondent's decision not to mutually recognise the applicant's registration in Victoria or the applicant's registration in New South Wales is accordingly affirmed

Held:

1. Pursuant to section 31(2) of the Mutual Recognition Act 1992 (Cth), as adopted in New South Wales by the Mutual Recognition (New South Wales) Act 1992 and in Western Australia by the Mutual Recognition (Western Australia) Act 2001, the Tribunal hereby declares that the activities involved in the occupation of "orthodontist" in Victoria are not substantially the same as the activities involved in the occupation of "dentist" in New South Wales and Western Australia even with the imposition of conditions".
2. Pursuant to section 31(2) of the Mutual Recognition Act 1992 (Cth), as adopted in New South Wales by the Mutual Recognition (New South Wales) Act 1992 and in Western Australia by the Mutual Recognition (Western Australia) Act 2001, the Tribunal hereby declares that the activities involved in the occupation of Shabier Shaboodien as an "orthodontist" in Victoria are not substantially the same as the activities involved in the occupation of "dentist" in New South Wales and Western Australia even with the imposition of conditions".
3. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision of the respondent dated 27 February 2008. 

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Practice and Procedure

Confidential and Commissioner of Taxation
[2009] AATA 476; 23/6/2009; Deputy President J Block, Mr SE Frost, Member

PRACTICE AND PROCEDURE - Application for referral of questions to the Federal Court - consideration of commentary and case law - balance of convenience in favour of refusal

Held: The application for referral of three questions to the Federal Court is refused.

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Social Security

Cash and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 458; 24/6/2009; Senior Member RW Dunne

SOCIAL SECURITY - pensions, benefits and allowances - qualification for Exceptional Circumstances Relief Payment - moneys borrowed by applicant from bank and loaned to another - whether amount loaned was a debt and an asset of the applicant - whether the debt was an "exempt asset" - decision affirmed
SOCIAL SECURITY - pensions, benefits and allowances - whether financial hardship provisions of the assets test apply to Exceptional Circumstances Relief Payment - whether Payment is a social security benefit or pension - decision affirmed

Held: The Tribunal affirms the decisions under review.

Dangerfield and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 457; 24/6/2009; Mr JG Short, Member

SOCIAL SECURITY - pensions, benefits and allowances - Disability Support Pension - commencement date - special circumstances - decision affirmed

Held: The Tribunal affirms the decision under review.

Hartley and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 470; 26/6/2009; Senior Member N Isenberg

SOCIAL SECURITY - whether person is a member of a couple - consideration of all of the circumstances of the relationship - decision under review affirmed

Held: The decision under review is affirmed.

Hassett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 463; 24/6/2009; Senior Member MJ Carstairs

SOCIAL SECURITY - farm help income support - eligibility for farm help re-establishment grant - exclusionary provisions held to apply - decision under review affirmed

Held: The Tribunal affirms the decision under review.

PLFX and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 464; 25/6/2009; Senior Member J Kelly

SOCIAL SECURITY - Crisis Payment - Claim for forced departure from home - Applicant required to move house for eight days during renovations - Applicant suffers psychiatric disorders - Whether qualifies for crisis payment - Whether extreme circumstances - Held no extreme circumstances - Decision affirmed  

Held: The decision of the Social Security Appeals Tribunal dated 4 September 2008, affirming Centrelink's decision to reject the Applicant's claim for a crisis payment, is affirmed.

Robb and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 461; 24/6/2009; Dr M Denovan, Member

SOCIAL SECURITY - Pensions, benefits and allowances - Settlement of compensation claim - Imposition of lump sum preclusion period - Legislative intent - Applicant's circumstances are not unusual, uncommon or exceptional  - No special circumstances exist - Whole of compensation payment treated as having been made - Decision affirmed.

Held: The Tribunal affirms the decision under review.

Rosser and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 475; 29/6/2009; Dr JD Campbell, Member

SOCIAL SECURITY - carer payment - reporting of Income - reporting of combined income - overpayment - sole administrative error - special circumstances - decision under review set aside

Held: The decision under review is set aside and in substitution thereof I determine that:

1. Mrs Rosser received an overpayment of Carer Payment in the amount of $9,633.96 during the period 14 August 2003 and 2 July 2006; and
2. a debt of $9,633.96 is due and payable to the Commonwealth.

Smith and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 483; 29/6/2009; Senior Member A Sweidan

Held: The Tribunal:

1. Affirms that part of the Social Security Appeals Tribunal (SSAT) decision dated 15 July 2008 that found that there had been an overpayment of age pension to the applicant in the relevant period arising from his failure to properly declare the nature of his employment with Community Newspapers and the income derived therefrom;
2. Remits the matter to the decision maker to recalculate the amount of such overpayment in accordance with the Tribunal's decision; and
3. Sets aside that part of the SSAT decision that found that there had been an overpayment of age pension to the applicant in the relevant period on the grounds that he had failed to properly declare the nature of his income from The Sunday Times, and finds that the applicant was not an employee of The Sunday Times.

Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 465; 25/6/2009; Ms R Perton, Member

SOCIAL SECURITY - lump sum compensation - preclusion period - application for disability support pension - whether special circumstances exist - slight variation of end date at respondent's request.

Held: The Tribunal affirms the decision under review but, following a recalculation by the respondent, varies the end date of the preclusion period from 10 June 2011 to 13 May 2011.

Toomey and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 468; 26/6/2009; Senior Member R Hunt

SOCIAL SECURITY - pensions, benefits and allowances - married parent living separately and apart from spouse - receipt of sole parent pension - receipt of parenting payment (single) - debts due to Commonwealth - overpayment where member of a couple - consideration of tests for living separately and apart on a permanent or indefinite basis - decision under review set aside.

Held: The tribunal sets aside the reviewable decision of the Social Security Appeals Tribunal made on 22 November 2007 and substitutes a decision that:

1. Mrs Toomey was overpaid parenting payment (single) from 1 September 2005 to 16 May 2006 because she was a member of a couple for the purposes of the Social Security Act 1991. The matter is remitted for calculation of Mrs Toomey's debt for the period she was overpaid; and
2. Mrs Toomey was living separately and apart from her husband during the periods 7 April 1994 to 19 March 1998 and 20 March 1998 to 31 August 2005 and therefore entitled to payment of sole parent pension and parenting payment (single) throughout these periods.

Tranchita and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 480; 26/6/2009; Senior Member A Sweidan

Social Security - Age Pension - whether assets value limit exceeded - whether debt should be written off for a period - decision under review affirmed subject to debt being written off for a further period 

Held: The Tribunal affirms the decision of the Social Security Appeals Tribunal under review but remits the matter to the decision maker with a direction that the debts be written off for a further period, such period to be determined by the decision maker but to be not less than 12 months from the date of this decision.

Vatarescu and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 477; 29/6/2009; Senior Member J Kelly

SOCIAL SECURITY - Newstart allowance - Participation failures - Whether participation failures - Whether three within 12 months -- Whether reasonable excuse - Held no reasonable excuse - Eight week non payment period properly imposed - Notice of one participation failure unreasonable -  Decision set aside in part - Decision affirmed in part

Held:

Proceedings 2008/4353
I affirm the decision of the Social Security Appeals Tribunal (SSAT) dated 25 September 2008.

Proceedings 2009/5006
I set aside of the decision of the SSAT dated 11 December 2008 insofar as it found that Mr Vatarescu committed a participation failure on 11 June 2008 and substitute the decision that he did not commit a participation failure on that date. I otherwise affirm the SSAT decision that Mr Vatarescu committed a participation failure on 24 June 2008.

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Taxation

Confidential and Commissioner of Taxation
[2009] AATA 478; 26/6/2009; Senior Member A Sweidan

Income Tax - deductions claimed for living expenses incurred while applicant attending 2 year residential study course for a Masters degree at an overseas university - whether expenditure private or domestic in nature - whether applicant established a new home overseas - factors to consider - held new home established - decision under review affirmed   

Held: The Tribunal:

1. Affirms that part of the respondent's reviewable objection decision dated 17 March 2008 (the decision) which disallowed a deduction for expenditure on accommodation and meals totalling $17,540.00 and expenditure on phone cards and mobile phone calls totalling $881.00;
2. Sets aside that part of the decision which disallowed deductions for a conference, study trip and careers fair totalling $4,088.00 and which imposed a tax shortfall penalty; and
3. Remits the matter to the respondent with a direction to issue an amended assessment in accordance with the Tribunal's decision.

ML Griffiths and RD Griffiths and RJ Griffiths and Commissioner of Taxation
[2009] AATA 482; 29/6/2009; Senior Member A Sweidan

Superannuation - Guarantee Assessments - whether person an employee - whether alleged agreement not to make superannuation contributions effective - whether penalties correctly imposed - decisions under review affirmed  

Held: The Tribunal affirms the decisions under review.

Pinot Nominees Pty Ltd and Anor and Commissioner of Taxation
[2009] AATA 466; 24/6/2009; Senior Member A Sweidan

Taxation - GST - whether rental payable by related entity and shown in taxpayer's financial statements but allegedly not paid correctly included in GST Assessment of Net Amount - whether administrative penalties should be remitted - decisions under review affirmed

Held: The Tribunal affirms the decisions of the respondent under review.

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Veterans' Affairs

Cassady and Repatriation Commission
[2009] AATA 462; 24/6/2009; The Honourable Justice N Mushin, Presidential Member, Brigadier C Ermert (Retd), Member

VETERANS' AFFAIRS - service pension - whether veteran entitled to pension at the special rate - generalised anxiety disorder - veteran resigned from work at aged 60 - re structuring at work - whether war-caused condition prevents veteran from engaging in remunerative work - alone test

Held: The Tribunal sets aside the reviewable decision and in substitution decides that the applicant is entitled to a service pension at the special rate with effect from 21 May 2007. 

Newton and Repatriation Commission
[2009] AATA 485; 30/6/2009; Mr RG Kenny, Member

VETERANS' AFFAIRS - Veterans' Entitlements - operational service with Royal Australian Navy - application of Statements of Principles - appropriate diagnosis of psychiatric conditions - no factual basis for diagnosis of posttraumatic stress disorder - posttraumatic stress disorder not war-caused - diagnosis of alcohol abuse  - clinical onset of alcohol abuse - a reasonable hypothesis of relevant relationship to service raised for alcohol abuse - satisfied beyond reasonable doubt that alcohol abuse not attributable to eligible war-service - alcohol abuse not war-caused - decision under review affirmed

Held: The Tribunal affirms the decisions under review.

Petersen and Repatriation Commission
[2009] AATA 459; 24/6/2009; Brigadier D Ermert (Retd) and Dr RJ McRae, Members

VETERANS' AFFAIRS - operational service - accepted war-caused disabilities of lumbar spondylosis, osteoarthrosis affecting both knees, spondylolisthesis - in receipt of disability pension at 80 per cent of General Rate - claim for acceptance of anxiety condition - ceased work because of back, knee and anxiety problems - four Flentjar questions - type of remunerative work - prevented from continuing work by war-caused conditions - other factors prevent the resumption of remunerative work - not eligible for disability pension at Intermediate or Special Rate - decision affirmed

Held: The Tribunal affirms the decision under review.

Vella and Repatriation Commission
[2009] AATA 472; 26/6/2009; Miss EA Shanahan and Brigadier C Ermert (Retd), Members

VETERANS' AFFAIRS   operational service - accepted impairment rating of 100 per cent - accepted war-caused disability of ischaemic heart disease - respondent concedes war-caused generalised anxiety disease - veteran ceased work because of heart problems - whether qualified for special rate - four Flentjar questions - type of remunerative work - prevented from continuing work by war-caused conditions - no other factors affect the continuation of remunerative work - s.24 of the Act satisfied - qualified for disability pension at Special Rate - decision altered

Held: The Tribunal:

• sets aside part of the decision under review and substitutes the decision that Mr Vella's generalised anxiety disorder is war-caused;
• affirms part of the decision under review that Mr Vella's sleep apnoea is not war-caused; and
• sets aside part of the decision under review and decides that Mr Vella is entitled to be paid a pension at the Special Rate from 4 January 2007.

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