AAT Decisions
Recent decisions
Week ending 28 July 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 | Freedom of Information | Immigration and Citizenship | Practice and Procedure | Social Security | Taxation | Veterans' Affairs
Compensation
Knight and Military Rehabilitation and Compensation Commission
[2010] AATA 541; 21/7/2010; Senior Member MJ Carstairs, Dr M Denovan, Member
COMPENSATION – Military compensation – Permanent impairment to female reproductive system – Sexual dysfunction disorder – Vulva and vagina – Not relevant that condition secondary to other compensable conditions – Meaning of “ailment” – Meaning of “deformity” – Meaning of “disease” in Table 11.2 same as in the Act – Meaning of “impairment” – Meaning of “injury” – First edition of Guide – Appropriate to assess under Table 11.2 – Table 11.2 not a cumulative test – Test of relevance – Previous assessment of psychiatric condition under Table 5.1 does not amount to double assessment – Contribution of early onset menopause – Earlier determination of liability not revoked – Sexual dysfunction disorder assessed at 10%.
Held: The Tribunal sets aside the reviewable decision and substitutes the decision that Ms Knight’s injury of sexual dysfunction attracts a rating of 10% under Table 11.2 of the Guide and remits the matter to the respondent for further assessment of what is now payable to her.
The parties have 14 days’ leave to file submissions in relation to costs. If no submissions are filed in that time, the Tribunal orders the respondent to pay the applicant’s costs in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988.
Prieto and Comcare
[2010] AATA 546; 22/7/2010; Senior Member RM Creyke
COMPENSATION – injury received playing in SNOG soccer tournament – whether the activity was associated with employment – activity supported by agency’s social club, not agency – activity on weekend, not at place of work, nor part of work duties - objective test - decision under review affirmed
Held: The decision under review is affirmed.
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Freedom of Information
iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing
[2010] AATA 542; 22/7/2010; Deputy President RP Handley, Senior Member AK Britton
FREEDOM OF INFORMATION – therapeutic goods – applications to register a therapeutic product - power to issue statement of reasons without revealing whether documents are in the agency’s possession – exemptions – breach of confidence – adverse effect on proper and efficient conduct of the operations of the agency – public interest - prejudice to proper administration of law
Held: The decisions under review are set aside and the matters remitted to the respondent with directions to inform the applicant whether the documents sought in its freedom of information applications exist. If the documents do exist, it is open to the respondent to claim exemptions in respect of the whole or part of those documents in the usual way pursuant to the provisions of the Freedom of Information Act 1982.
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Immigration and Citizenship
Basile and Minister for Immigration and Citizenship
[2010] AATA 556; 26/7/2010; Deputy President SA Forgie
IMMIGRATION – visa – cancellation – character test – whether discretion should be exercised to cancel visa – interpretation of Ministerial Direction No. 41 – decision affirmed.
Held: The Tribunal affirms the decision of the respondent dated 30 April 2010 to cancel the Class BF Transitional (Permanent) Visa held by the applicant.
Funganuku and Minister for Immigration and Citizenship
[2010] AATA 558; 26/7/2010; Senior Member GD Friedman
MIGRATION – Spouse visa – cancellation – conviction for serious sex offences – character test – exercise of discretion
Held: The Tribunal affirms the decision under review.
Islam and Minister for Immigration and Citizenship
[2010] AATA 515; 9/7/2010; Senior Member RM Creyke
IMMIGRATION – Cancellation of visa on character grounds – Substantial criminal record – Drug addiction catalyst to criminal behaviour – Previous exercise of discretion not to cancel visa in 2007 – Direction [No 41] binding Tribunal replaced previous Direction [No 21] – No conviction of serious offence for five years since Applicant a teenager – decision under review set aside and substituted
Held: The decision under review to cancel Mr Islam’s visa on character grounds is set aside and in substitution it is decided that the Tribunal exercise its discretion to not refuse Mr Islam’s visa.
Tucker and Minister for Immigration and Citizenship
[2010] AATA 559; 26/7/2010; Justice Buchanan, Senior Member Isenberg
Visa cancellation – character test – reduction in apparent level of violent conduct – significance of expert evidence about risk – best interest of the children – visa cancelled
Held: The Tribunal affirms the decision of a delegate of the Minister for Immigration and Citizenship, made on 27 April 2010, to cancel the applicant’s visa.
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Practice and Procedure
O’Neill and Child Support Registrar
[2010] AATA 545; 21/7/2010; Senior Member K Bean
PRACTICE AND PROCEDURE – Whether Directions should be made pursuant to s 25(4A) of the AAT Act limiting the scope of the hearing – considerations relevant to reviewing a decision not to revoke a Departure Prohibition Order – it is not necessary or appropriate for the Tribunal to undertake a full review of the correctness of the decision to impose the Departure Prohibition Order – nor is it open to the Tribunal to attempt to determine the ‘true’ extent of the applicant’s child support liability – directions made limiting the scope of the hearing accordingly
Held: Pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that the scope of the hearing and the evidence to be received at the hearing will be limited to the following issues:
- the legal validity of the Departure Prohibition Order;
- the current amount of Mr O’Neill’s registrable maintenance liability for the purposes of s 72E of the Child Support (Registration and Collection) Act 1988 (the Collection Act);
- Mr O’Neill’s current financial position and whether his child support liability is completely irrecoverable;
- any arrangements Mr O’Neill has made for discharge of his child support liability;
- matters relevant to the question of whether he should be permitted to leave Australia notwithstanding his child support liability, including:
(i) the nature and purpose of any travel proposed by Mr O’Neill;
(ii) the relevance of the fact that Mr O’Neill can seek a Departure Authorisation Certificate and the efficacy of this in his circumstances;
- the likely impact of any travel proposed by Mr O’Neill on the respondent’s ability to recover the debt;
- the matters referred to in s 72I(2) of the Collection Act; and
- any other matter in respect of which leave is given at the hearing.
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Social Security
Al Aaraji and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 561; 27/7/2010; Deputy President SD Hotop
SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairment – applicant’s impairment is of 10 points under Impairment Tables – applicant not qualified for disability support pension – decision under review affirmed
Held: The Tribunal affirms the decision under review.
Bartholomai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 553; 23/7/2010; Dr M Denovan, Member
SOCIAL SECURITY – Family tax benefit – Debt owned to the Commonwealth on the basis that applicant exceeded maximum period of absence from Australia – Applicant contended debt not recoverable on the basis that 6 years had past since an officer could reasonably be expected to become aware of circumstances giving rise to debt – Special circumstances exist – Matter remitted to the respondent for reconsideration.
Held: The Tribunal sets aside the decision under review pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) and remits the decision to the respondent for reconsideration on the basis that:
- part of the debt that accumulated from and including 6 June 2001 should not be waived; and
- special circumstances exist justifying the waiver of the balance of the debt pursuant to s 1237AAD of the Social Security Act 1991 (Cth).
Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 551; 23/7/2010; Senior Member KS Levy RFD
SOCIAL SECURITY – Carer payment – Did applicant provide ‘constant care’ – Care provided by applicant doesn’t amount to ‘constant care’ – Decision affirmed.
Held: The Tribunal affirms the decision under review.
Grima and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 537; 20/7/2010; Senior Member SE Frost
Social Security – disability support pension – assessment – demonstrable evidence of impairment - impairment rating.
Held: The decision under review is affirmed.
Henderson and Secretary, Department of Education, Employment and Workplace Relations
[2010] AATA 550; 23/7/2010; Senior Member KS Levy RFD
SOCIAL SECURITY – Newstart allowance – Payment of the correct rate – Did overpayment occur – Debt due to the Commonwealth – Debt should not be waived or written off – Decision affirmed.
Held: The Tribunal affirms the decision under review.
Kranjcic and Secretary, Department of Education, Employment and Workplace Relations
[2010] AATA 552; 23/7/2010; Senior Member KS Levy RFD
SOCIAL SECURITY – Newstart allowance – Whether applicant is principal carer of his son – Degree of custody, care and control – Status quo to be maintained – Decision affirmed.
Held: The Tribunal affirms the decision under review.
Krishnamoorthy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 518; 12/7/2010; Senior Member AK Britton
SOCIAL SECURITY – disability support pension – maximum portability period – favourable determination takes effect on the day on which the application for review is made – notice of decision sent to last known address taken to have been given – person with more than one address – address to which mail requested to be sent is last known address
Held: The decision under review is affirmed.
McInnes and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 547; 22/7/2010; Dr JD Campbell, Member
Social Security – Disability Support Pension – Granted May 2006 – Reviewed and cancelled May 2009 – Condition considered was Complex Regional Pain Syndrome Type 2 – Presence of Psychological symptoms noted but not investigated, diagnosed or fully treated – Decision under review affirmed.
Held: The decision under review be affirmed.
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Taxation
Tanti and Commissioner of Taxation
[2010] AATA 549; 23/7/2010; Senior Member RW Dunne
TAXATION – income tax – allowable deductions – claim for deduction for interest paid or payable on funds borrowed from applicant’s mother and on-lent interest free to a company of which the applicant was sole shareholder and director – whether interest incurred in gaining or producing assessable income or necessarily incurred in carrying on a business for that purpose – decision under review varied.
Held: The Tribunal varies the decision under review.
The Taxpayer and Commissioner of Taxation
[2010] AATA 544; 21/7/2010; Deputy President PE Hack SC, Senior Member FD O’Loughlin
Held: In each of the Applications 2009/5952, 2009/5953, 2009/5954 and 2009/5955:
- insofar as the proceedings concern decisions that relate to supplies made before 17 March 2005 pursuant to contracts originally entered into by Oldco Pty Ltd, those decisions (including decisions on shortfall penalty and remission) are affirmed;
- insofar as the proceedings concern decisions that relate to supplies made before 17 March 2005 pursuant to contracts originally entered into by Newco 1 Pty Ltd or Newco 2 Pty Ltd, those decisions (including decisions on shortfall penalty and remission) are set aside and remitted to the respondent with a direction to allow the objection in full;
- insofar as the proceedings concern decisions that relate to supplies made on or after 17 March 2005, those decisions (including decisions on shortfall penalty and remission) are:
(a) set aside; and
(b) remitted to the respondent for reconsideration according to law and in accordance with the following directions or recommendations:
(i) any valuation of the freehold interest in relation to Tower Two and Tower Three (as at 1 July 2000) provided to the respondent within 60 days of the date of this decision, which complies with the requirements of the following determinations, should be considered by the respondent in his reconsideration:
(A) with respect to supplies made up to and including 30 November 2005, A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination (No. 2) 2000;
(B) with respect to supplies made on or after 1 December 2005, A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination MSV 2005/3;
(ii) if no valuation is provided to the respondent in accordance with subparagraph (i) above in relation to Tower Two, it would be appropriate for the respondent to proceed on the basis that the applicant is not entitled to use the margin scheme provided for by Division 75 of the GST Act in relation to such of the supplies made on or after 17 March 2005 that relate to Tower Two;
(iii) if no valuation is provided to the respondent in accordance with subparagraph (i) above in relation to Tower Three, it would be appropriate for the respondent to proceed on the basis that the applicant is not entitled to use the margin scheme provided for by Division 75 of the GST Act in relation to such of the supplies made on or after 17 March 2005 that relate to Tower Three.
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Veterans' Affairs
Haynes and Repatriation Commission
[2010] AATA 555; 26/7/2010; Senior Member SE Frost, Dr I Alexander, Member
VETERANS’ AFFAIRS – widow’s pension – operational service – whether death related to service – kind of death – ischaemic heart disease – smoking habit – decision under review set aside
Held: The decision under review is set aside, and in substitution the Tribunal decides that the Applicant is entitled to the war widow’s pension, with a date of effect of 27 November 2005.
Hill and Repatriation Commission
[2010] AATA 540; 21/7/2010; Senior Member MD Allen, Dr J Campbell, Member
VETERANS’ ENTITLEMENTS: Medical cause of death. Tribunal satisfied that cause of death was glomerulonephritis which was not linked to war service. War-caused Ischaemic Heart Disease not a cause of death.
Held: Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is AFFIRMED.
Meller and Repatriation Commission
[2010] AATA 538; 21/7/2010; Deputy President DG Jarvis
VETERANS' ENTITLEMENTS ACT - Application to determine qualifying service - RAF flying officer - service in Borneo - participation in missions adjacent to border with Indonesia - meaning of "war-like operations" - meaning of "incurred danger from hostile forces of the enemy" - decision under review affirmed.
Held: The decision under review is affirmed.
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