AAT Decisions
Recent decisions
Week ending 3 February 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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Previous weeks' decisions are available at http://www.austlii.edu.au/au/cases/cth/aat/recent.html.
Compensation | Immigration and Citizenship | Social Security | Taxation | Transport | Veterans' Affairs
Compensation
Carpenter and Comcare
[2010] AATA 62; 29/1/2010; Deputy President DG Jarvis
COMPENSATION - Commonwealth employee - whether generalised anxiety disorder was contributed to by employment in a material degree - claim for permanent impairment - meaning of "injury", "disease", "aggravation" and "results" - pre-existing vulnerability of applicant to stressful events - perception of victimisation, bullying and illegal practice in connection with employment - onset of anxiety disorder some years after cessation of employment - relevance of applicant's intervening unsuccessful grievance complaints and activities as a whistleblower - held that employment contributed to anxiety disorder in a material degree - held that failure to obtain benefit contributed, but not to a material degree, to anxiety disorder - decisions under review set aside.
STATUTORY INTERPRETATION - exceptions to definition of "injury" in Safety, Rehabilitation and Compensation Act 1988 (Cth) to be interpreted in content of provision imposing liability - implication of requirement of materiality in causation of excepted events - meaning of "results".
Held: The Tribunal sets aside the decisions under review, and:
- in place of those decisions decides that
• the respondent is liable for the condition of generalised anxiety disorder from which the applicant has been suffering since November 1990, and
• the degree of permanent impairment resulting from the applicant's generalised anxiety disorder should be assessed at 10%;
- remits the matter to the respondent for reconsideration in accordance with these reasons;
- reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
- orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant.
Cochrane and Australian Postal Corporation
[2010] AATA 31; 18/1/2010; Senior Member J Toohey, Dr J Campbell, Member
COMPENSATION - left shoulder injury - work as a postal delivery officer - whether shoulder condition related to employment - whether a permanent impairment - degree of impairment - decisions under review affirmed.
Held: The Tribunal affirms the decisions under review.
Crofts and Comcare
[2010] AATA 71; 2/2/2010; Senior Member N Bell, Dr I Alexander and Air Vice-Marshal T Austin, Members
Compensation - prior medical condition - employment causation - differing medical opinion - expert evidence
Held: The decisions under review are affirmed.
MacDonald and BHP Billiton Ltd
[2010] AATA 52; 27/1/2010; Dr JD Campbell, Member
SEAFARERS COMPENSATION - nature of psychiatric condition - multiple employers - nature and condition of employment - consequences of termination - assessment of entitlement to compensation - decision under review affirmed.
Held: The decision under review is affirmed.
Obst and Australian Postal Corporation
[2010] AATA 53; 25/1/2010; Senior Member L Hastwell, Professor PL Reilly AO, Member
COMPENSATION - ankle injury - liability accepted then ceased - decision to cease liability set aside - permanent impairment considered - duration of impairment and likelihood of improvement - attempts at rehabilitation and treatment - ongoing limitation in movement and disability - permanent impairment established - decision set aside
COMPENSATION - Complex Regional Pain Syndrome - sequellae to accepted condition of ankle injury - criteria for diagnosis of Complex Regional Pain Syndrome considered - Comcare Guide criteria to be used for assessment of permanent impairment - pain specialists agree initial diagnosis of Complex Regional Pain Syndrome not appropriately diagnosed by use of Comcare Guide - liability established - decision set aside
COMPENSATION - psychological disorder - adjustment disorder with depressed mood - factors giving rise to psychological condition - ankle injury - pain and failure to recover within expected timeline - workplace issues upon return to work with modified duties - pre-existing vulnerability - existence of other stressors considered - work related issues materially contributed to onset of psychological disorder
JURISDICTION - psychological disorder - adjustment disorder - depression - second episode following shortly after resolution of prior period of adjustment disorder - whether there is a reviewable decision for the Tribunal to consider - consideration of reviewable decision - claim lodged prior to onset of second episode - did not review second episode - no jurisdiction - subject to fresh claim
Held: The Tribunal sets aside the decisions under review and in substitution decides that:
- The decision of the 20 July 2006 in which APC ceased liability pursuant to ss 16 and 19 of the SRC Act with respect to Ms Obst's ankle injury is set aside. The Tribunal finds that liability was ongoing.
- The Tribunal sets aside the decision of 22 November 2007 with respect to Ms Obst's claim that APC is liable in relation to Complex Region Pain Syndrome and finds that liability for her ankle injury should extend to liability for the subsequent development of CRPS.
- The Tribunal sets aside the decision of 30 September 2008 that Ms Obst did not have a permanent impairment of her left ankle and substitutes the decision that Ms Obst does have a permanent impairment of her left ankle arising as a result of the original ankle injury and its sequelae and that her impairment is 11 percent under the relevant Comcare tables.
- The Tribunal sets aside the decision of 20 July 2007 that the APC was not liable with respect to Ms Obst's claim for psychological injury for the period 28 November 2006 and 12 March 2007 and finds that the APC is liable with respect to the psychological injury of adjustment disorder with depressed mood that she suffered during that period.
- The Tribunal finds that it has no jurisdiction to deal with any psychological condition that Ms Obst suffered after she was certified fit to return to work by her medical practitioner as of 12 March 2007.
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Immigration and Citizenship
Obele and Minister for Immigration and Citizenship
[2010] AATA 58; 29/1/2010; Deputy President RP Handley, Senior Member JL Redfern
IMMIGRATION - visa cancellation - character test - substantial criminal record - whether tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 - Minister's direction issued under s 499(1) of the Migration Act 1958 - Direction No 41 applied - primary considerations - seriousness and nature of the relevant conduct - risk that the conduct may be repeated - other considerations - family ties, the nature and extent of any relationships with the Australian community - hardship likely to be experienced - level of education - evidence of rehabilitation and prospects of reintegration into the community - expectation of the Australian community - decision under review set aside
Held: The Tribunal sets aside the decision under review and substitutes a decision that Mr Obele's visa should not be cancelled.
Walker and Minister for Immigration and Citizenship
[2010] AATA 72; 2/2/2010; Deputy President GL McDonald
IMMIGRATION AND CITIZENSHIP - applicant was a child migrant - applicant applied for Australian citizenship - applicant served multiple terms of imprisonment - serious prison sentence - serious repeat offender - decision under review affirmed.
Held: The Tribunal affirms the decision under review.
Weng and Minister for Immigration and Citizenship
[2010] AATA 60; 29/1/2010; Senior Member J Toohey
IMMIGRATION - business skills visa - property development - substantial ownership interest in an eligible business - genuine efforts - residual discretion - decision under review affirmed.
Held: The decision under review is affirmed.
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Social Security
Bysouth and Secretary, Department of Education, Employment and Workplace Relations
[2010] AATA 59; 29/1/2010; Senior Member AF Cunningham
SOCIAL SECURITY - newstart allowance - assets test - whether superannuation funds used to purchase real property constituted a loan or gift by the applicant to the Trust - definition of assets - asset limit exceeded - decision under review affirmed
Held: The decision under review is affirmed.
Giorgi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 65; 1/2/2010; Senior Member PW Taylor SC, Senior Member J Redfern
SOCIAL SECURITY- disability support pension- date of effect- substituted decision takes effect on date of original decision unless untimely application for review- 13 weeks- date of effect of Social Security Appeals Tribunal decisions-SSAT favourable decision.
Held: The decision under review is affirmed.
Hopkins and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 50; 27/1/2010; Deputy President RP Handley
SOCIAL SECURITY - disability support pension -attribution of assets - whether trustee an attributable stakeholder of private trust - whether applicant received a benefit - whether there are special circumstances - decision under review varied
Held: The decision under review is set aside and remitted to the Respondent to reassess Mrs Hopkins' entitlement to a disability support pension for the period 20 December 1995 to 2 November 2005 on the following basis:
- that for the period 20 December 1995 to 31 December 2001, the properties at Brush Road, Ourimbah; Fraser Road, Long Jetty; and Macdonalds Road, Lisarow, were, at the relevant times, the assets of the Hopkins Children's Trust; and
- that for the period 1 January 2002 to 2 November 2005, Mrs Hopkins was an attributable stakeholder of the Trust, and 40% of the assets of the Trust should be attributed to her for the purpose of the application of the assets test.
Kovacevich and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 63; 29/1/2010; Senior Member A Sweidan
Social Security- Disability Support Pension- whether pension should have been cancelled or suspended-decision under review affirmed
Held: The Tribunal affirms the decision under review.
Moir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 48; 22/1/2010; Senior Member L Hastwell
SOCIAL SECURITY - pensions, benefits and allowances - Age Pension - overpayment - administrative errors by Centrelink - notices sent to the applicant advising income and assets used for assessment - failure to read notices - special circumstances considered - significant and repeated administrative errors - applicants negligent in failing to consider notices, but honest in receipt of funds - age and status of health considered - stress and trauma caused to applicants by overpayment significant - balance between public interest and special circumstances of the individual considered - decision to waive a portion of the debt
Held: The Tribunal varies the decisions under review and decides that:
- with respect to the overpayment to Mr Moir, on the basis of a finding that the overpayment that occurred between his application for age pension and 24 June 2002 should be waived and the matter should be remitted to the department to recalculate the overpayment; and
- once that recalculation of Mr Moir's debt is made, the tribunal directs that 75 percent of the total debt owed by Mr Moir and 75 percent of the total debt owed by Mrs Moir be waived due to the special circumstances in each case.
Salangsang and Secretary, Department of Education, Employment and Workplace Relations
[2010] AATA 55; 27/1/2010; Senior Member MJ Carstairs
SOCIAL SECURITY - sickness allowance - debt raised - failure to report income - special circumstances considered - decision under review affirmed
SOCIAL SECURITY - parenting payment (partnered) - debt raised - proof of debt - debt waived on grounds of special circumstances - decision under review set aside
SOCIAL SECURITY - parenting payment (partnered) - debt raised - misreporting of partner's income - part of debt waived on grounds of special circumstances - decision under review varied
Held: The Tribunal affirms the decision under review with respect to Donna Salangsang's sickness allowance debt for the period 8 December 2003 to 14 March 2004.
The Tribunal sets aside the decision under review as it relates to Paul's Salangsang's parenting payment (partnered) debt for the period 8 April 1999 to 24 July 2001, the debt being waived on the grounds of special circumstances.
The Tribunal varies the decision under review as it relates to Paul Salangsang's parenting payment (partnered) debt for the period 4 January 2002 to 17 June 2004, by waiving that part of the debt that represents overpaid parenting payments from 26 March 2004. That is, $1,873.46 is waived.
Spanner and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 51; 27/1/2010; Senior Member S Karas AO
SOCIAL SECURITY - Benefits and entitlements - age pension - pension bonus scheme - application refused - applicant received age pension before claiming pension bonus.
Held: The Tribunal affirms the decision under review.
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Taxation
Intevox Pty Ltd and Commissioner of Taxation
[2010] AATA 57; 28/1/2010; Senior Member F O'Loughlin
TAXATION - goods and services tax - penalty - whether agent took reasonable care - whether remission of penalty is warranted.
Held: The Tribunal affirms the decision under review.
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Transport
Burns and Secretary, Department of Infrastructure, Transport, Regional Development and Local Government
[2010] AATA 33; 18/1/2010; Deputy President DG Jarvis
TRANSPORT - motor vehicle importation - non-standard vehicle - approval of importation - imposition of conditions - decision under review set aside.
Held: For the reasons referred to in the Tribunal's decision dated 18 December 2009 (reported as [2009] AATA 972) and for the reasons attached, the Tribunal sets aside the decision under review, and in place of that decision, decides that the applicant's application to import the Subaru Forester vehicle referred to in the application dated 27 February 2009 be approved, subject to the following conditions:
- the vehicle complying (through any necessary modifications) with registration requirements in the jurisdiction in which the vehicle is to be registered, as soon as practicable after the applicant takes delivery of the vehicle in Australia; and
- once endorsed by the registration authority of that jurisdiction, the vehicle being fitted with a Personal Import Plate, being a plate customarily issued by the Department in the case of importations under Regulation 11 and which is intended to give notice to prospective users that that the vehicle was personally imported rather than manufactured in Australia or imported commercially.
Heiner and Minister for Infrastructure, Transport, Regional Development and Local Government
[2010] AATA 67; 1/2/2010; Senior Member MJ Carstairs
TRANSPORT - motor vehicle importation - nonstandard vehicle - vehicle owned but not used for a continuous period of 12 months - whether to exercise general discretion to approve importation - decision under review affirmed
Held: The Tribunal affirms the decision under review.
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Veterans' Affairs
Baird and Repatriation Commission
[2010] AATA 66; 1/2/2010; Mr E Fice and Dr K Breen, Members
Gastro-oesophageal reflux disease - diagnosis - clinical onset - solicitors instructions to expert - independence of expert - war-caused disease - alcohol consumption and smoking - intermediate and special rate of pension - remunerative work - cause and extent of incapacity - alone test
Held: The decision of the Veterans' Review Board (VRB) dated 12 June 2007 in respect of Mr Baird's claimed gastro-oesophageal reflux disease (GORD) is set aside. Instead, the Tribunal finds that Mr Baird's GORD was war caused. The Tribunal affirms the decision of the VRB dated 12 June 2007 regarding Mr Baird's rate of pension.
Pink and Repatriation Commission
[2010] AATA 46; 22/1/2010; Senior Member L Hastwell, Mr SJ Ellis AM, Member
VETERANS' AFFAIRS - veterans' entitlements - operational service - claim that generalised anxiety disorder and alcohol dependence were war-caused - consideration of Statements of Principles - three individual stressors claimed - consideration of what amounts to a life threatening event - the Deledio principles considered - applicant an unreliable witness - decision under review affirmed
Held: The Tribunal affirms the decision under review.
Van Duren and Military Rehabilitation and Compensation Commission
[2010] AATA 61; 29/1/2010; Senior Member RM Creyke
VETERANS' AFFAIRS - grant under Veterans' Vocational Rehabilitation Scheme - undergraduate degree course - Applicant's medical and psychological conditions - cumulative criteria - decision under review affirmed
Held: The decision under review is affirmed.
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