AAT Decisions
Recent decisions
The following Administrative Appeals Tribunal Reasons for Decisions
have been recently handed down. Links to the full text of the
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Child Support | Compensation | Customs | Health and Community Services | Immigration and Citizenship | Insurance | Practice and Procedure | Social Security | Taxation | Veterans' Affairs
Child Support
Valve and Child Support Registrar
[2008] AATA 661; 31/7/2008; Senior Member N Isenberg
CHILD SUPPORT - Departure Authorisation Certificate - Departure Prohibition Order preventing Applicant from leaving Australia - whether a Departure Authorisation Certificate should be issued - whether Applicant likely to depart from and return to Australia in an appropriate period - whether DPO likely to be revoked - security - whether humanitarian grounds - decision under review is affirmed
Held: The decision under review is affirmed.
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Compensation
Howarth and Australian Postal Corporation
[2008] AATA 655; 1/7/2008; Senior Member JW Constance
COMPENSATION - application for transfer of venue - applicable principles - balance of convenience - the interests of the parties - direction to transfer to Sydney Registry.
Held:
- The management of this application is transferred from the Canberra Registry of the Tribunal to the Sydney Registry;
- until further direction, the parties shall file any further documents in relation to this matter in the Sydney Registry at Level 7, 55 Market Street, Sydney NSW.
Thomson and Comcare
[2008] AATA 678; 5/8/2008; Senior Member R Hunt, Dr SH Toh, Member
COMPENSATION - workplace injury claim - schizophrenia or self-diagnosed unipolar disorder - late lodgement of claim - no injury accepted by respondent - consideration of prejudice to respondent caused by lateness of claim - decision affirmed.
Held: The decision under review is affirmed.
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Customs
Midland Brick Company Pty Ltd and Chief Executive Officer of Customs
[2008] AATA 673; 31/7/2008; Senior Member A Sweidan
CUSTOMS AND EXCISE - diesel fuel rebate - mining operations - mining for minerals - clay exception - kaolin exclusion - determination of applicant's objective purpose - excavation not for kaolin - rebate not applicable - decisions under review affirmed
Held: The Tribunal affirms the decisions under review.
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Health and Community Services
Jackson and Australian Community Pharmacy Authority
[2008] AATA 656; 29/7/2008; Dr TM Baker, Member
HEALTH AND COMMUNITY SERVICES - pharmaceutical benefits - application for new premises - whether requirement satisfied that the proposed premises could be used for the purpose of operating a pharmacy under the applicable local government and State and Territory laws relating to land development - decision under review is affirmed
Held: The Tribunal affirms the decision under review.
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Immigration and Citizenship
Metera and Minister for Immigration and Citizenship
[2008] AATA 668; 31/7/2008; Deputy President GD Walker
IMMIGRATION - visa-ex - applicant has substantial criminal record - whether tribunal should exercise discretion to cancel the applicant's visa - protection and expectations of the Australian community considered - best interests of the children considered - other considerations - protection and expectations of the community outweigh the best interests of the children and other considerations in this case - decision under review affirmed.
Held: The decision under review is affirmed.
Miller and Migration Agents Registration Authority
[2008] AATA 659; 30/7/2008; Senior Member BH Pascoe
MIGRATION - Migration agent - bar from being registered for period of five years - alleged conflict of interest - failure to deal fairly with client - alleged dishonesty - unsubstantiated allegations
Held: The Tribunal sets aside the decision under review.
Roszy and Migration Agents Registration Authority
[2008] AATA 658; 29/7/2008; Senior Member S Penglis
Immigration - various breaches of Code of Conduct by migration agent - relevant principles to be applied in determining whether to make a barring order and, if so, for what period - applicant barred for two years and six months.
Held:
- The reviewable decision of the respondent made on 22 May 2006 is set aside.
- In lieu thereof the applicant is barred pursuant to section 311A of the Migration Act 1958 (C'th) from being a registered migration agent for a period of 2 years and 6 months commencing on 22 May 2006.
Wu and Ors and Minister for Immigration and Citizenship
[2008] AATA 679; 5/8/2008; Senior Member N Isenberg
MIGRATION - business visa - notice of intention to consider cancellation - authorised recipient - applicant's authorised recipient notified of an intention to cancel applicants' visas - primary applicant received notice of intention to consider cancellation and responded to it - respondent complied with subsection 135(1)
Held: The Tribunal is satisfied that subsection 135(1) of the Migration Act 1958 has been complied with. A further hearing will be scheduled to address the substantive issue of the cancellation of the Applicants' Business Skills visas under section 134 of the Migration Act 1958.
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Insurance
Abela and Australian Prudential Regulation Authority
[2008] AATA 653; 29/7/2008; Deputy President GD Walker, Mr SE Frost, Member
Australian Prudential Regulation Authority disqualification - whether applicant is a fit and proper person to be or act as a director or senior manager of a general insurer - whether applicant's conduct in relation to HIH demonstrates that he failed to show the judgement, probity and competence to adequately perform the functions of a director or senior manager of a general insurer - complaints about applicant's behaviour not made out - decision under review is set aside.
Held: The decision under review is set aside.
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Practice and Procedure
McKenzie and Ors and Civil Aviation Safety Authority
[2008] AATA 651; 25/7/2008; Deputy President PE Hack SC
PRACTICE AND PROCEDURE - application for a stay of decision - Chief Pilot's approval - Check Pilot's delegation - air safety the paramount concern - stay granted
Held: In each of application 2008/2431 and 2008/2432
- the Tribunal orders, pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), that implementation of the decision under review be stayed until the hearing and determination of the application or earlier order;
- there is liberty to apply to vary the order in paragraph (a).
Shipman and Executive Director, Social Security Appeals Tribunal
[2008] AATA 683; 9/7/2008; Senior Member J Kelly
PRACTICE AND PROCEDURE - Jurisdiction - Social Security Appeals Tribunal - Child Support Agency - Objection to child support assessment - Extension of time - No enactment conferring jurisdiction - Held no jurisdiction - Application dismissed
Held: The Applicant has been notified in writing that the decision in relation to which an application for review has been lodged does not appear to be reviewable by the Tribunal.
An interlocutory hearing was held on 9 July 2008. The Applicant has been unable to show, within 14 days after being notified, that the decision is reviewable by the Tribunal.
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.
Wagh and Australian Postal Corporation
[2008] AATA 676; 5/8/2008; Senior Member G Ettinger
PRACTICE AND PROCEDURE - Applicant alleges conflict of interest and bias of the Presiding Member - Applicant expresses an intention to apply for reconstitution of the Tribunal pursuant to section 21A of the AAT Act, but fails to do so - Applicant states his intention not to appear, and fails to appear at two interlocutory Tribunal hearings - application for issue of Summons refused - application of Respondent that proceedings be dismissed as being vexatious and frivolous refused - application dismissed for failing within a reasonable time to comply with Directions of the Tribunal, and for non-attendance at Summons, Directions and Interlocutory Hearings.
Held: I decide as follows with regard to each of the issues considered at the Directions Hearing and Hearing of Summons on 16 July 2008, and for the reasons discussed below.
I am not satisfied that details regarding an allegation of conflict of interest have been submitted by Mr Wagh. I am mindful of the Respondent's submissions in that regard, and I am satisfied that I have no conflict of interest in hearing Mr Wagh's application.
I am not satisfied that Mr Wagh has made an application pursuant to section 21A of the Act for the Tribunal to be reconstituted. I am properly constituted to hear the application.
I have considered the Respondent's application that Mr Wagh's application be dismissed as vexatious or frivolous, and I decline to so dismiss it.
I do not agree to issue the Summons Mr Wagh has requested be issued to Telstra Corporation.
I am satisfied that Mr Wagh has shown disregard towards the Directions of the Tribunal, and for the procedures of the Tribunal. I dismiss Mr Wagh's application for review pursuant to section 42A(2)(a) of the Act for failing to attend two Hearings of interlocutory matters at the Tribunal when he had notice of them. I further exercise the discretion to also dismiss Mr Wagh's application pursuant to section 42A(5)(b) for failing within a reasonable time to comply with Directions of the Tribunal in relation to his application for review.
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Social Security
Bullivant and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 674; 1/8/2008; Deputy President SD Hotop
SOCIAL SECURITY - overpayment of social security pensions - debts due to Commonwealth - waiver or write off of debts - applicants married to each other - applicants received disability support pension, wife pension and age pension from 1991 - male applicant received retirement pension from United Kingdom local government pension fund from 1998 - both applicants subsequently received United Kingdom old age pension - amounts of retirement pension payments not notified to Centrelink until August 2005 - applicants received overpayments of pension entitlements from 1998 to September 2005 - debts owed by applicants to Commonwealth - recovery of debts - debts incurred in period August-September 2005 attributable solely to administrative error by Centrelink - debts incurred in period August-September 2005 waived - no grounds for waiver of remainder of debts - remainder of debts not attributable solely to administrative error by Centrelink - no special circumstances making it appropriate to waive remainder of debts - no ground to write off remainder of debts - remainder of debts recoverable in full from applicants
Held: The Tribunal sets aside the decision of the Social Security Appeals Tribunal, dated 26 July 2006, and, in substitution therefor, decides that:
- Mr Bullivant received overpayments of disability support pension and age pension, and Mrs Bullivant received overpayments of wife pension and age pension, in the period from 24 July 1998 to 1 November 2005;
- the amounts of those overpayments constitute debts owed to the Commonwealth by Mr Bullivant and Mrs Bullivant;
- the Commonwealth's right to recover that part of the debts owed to it by Mr Bullivant and Mrs Bullivant, which arose by reason of overpayments of age pension in the period from 23 August 2005 to 21 September 2005, is waived under s 1237A(1) of the Social Security Act 1991 (Cth) ("the Act");
- the debt owed to the Commonwealth by Mr Bullivant (by reason of overpayments of disability support pension and age pension in the period from 24 July 1998 to 22 August 2005) and the debt owed to the Commonwealth by Mrs Bullivant (by reason of overpayments of wife pension and age pension in the period from 24 July 1998 to 22 August 2005) are recoverable in full from each of them by the Commonwealth in accordance with Part 5.3 of the Act.
James and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 667; 31/7/2008; Senior Member BJ McCabe
SOCIAL SECURITY - Benefits - Parenting payment - Overpayment - Whether debt has arisen - Debt has arisen - Whether debt should be waived - No special circumstances - Administrative error found - Payments received in "good faith" - Decision varied
Held: The Tribunal varies the decision under review so that the portion of the debt which accrued prior to 5 March 2004 is waived pursuant to s 1237A of the Social Security Act 1991. The decision under review is otherwise affirmed.
McPherson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 657; 30/7/2008; Senior Member L Hastwell
SOCIAL SECURITY - pensions, benefits and allowances - assets test - extended land use exemption - principal home requirement considered - decision affirmed
Held: The Tribunal affirms the decision under review.
Mozumder; Secretary, Department of Education, Employment and Workplace Relations and
[2008] AATA 671; 1/8/2008; Senior Member G Ettinger
Parenting Payment Debt - assets - did the transfer of real property from the Applicant's husband's brother, her brother-in-law, Iqbal Mozumder constitute a trust arrangement - questions regarding legal and beneficial ownership of real property - Tribunal not satisfied that the transfer was simply so that the Applicant could act as trustee and make arrangements for the property while his brother was overseas - issues of credit in the evidence - false information given by Mr and Mrs Mozumder to obtain loans - decision of SSAT set aside - decision of the Secretary restored - couple's assets exceed limit for PPP - debt has arisen - no special circumstances - debt must be recovered.
Held: The decision of the SSAT is set aside and in substitution the Tribunal decides that Mrs Fardous Mozumder has incurred a debt of $32,565.75 for Parenting Payment Partnered. I do not find special circumstances under which the debt may be waived in full or in part, and accordingly the full amount must be recovered.
Ray and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 663; 31/7/2008; Mr RG Kenny, Member
SOCIAL SECURITY - Administration of the Act - pension bonus scheme - applicant required to work 960 hours in the full year bonus period in order to satisfy the work test - relevant bonus period was the first year of membership of the scheme - applicant worked for less that 960 hours in the relevant bonus period - work test not satisfied - pension bonus not payable to applicant - decision under review affirmed.
Held: The Tribunal affirms the decision under review.
Robinson; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor and
[2008] AATA 672; 1/8/2008; Mr SE Frost, Member
SOCIAL SECURITY - whether member of a couple - respondent married - whether during any period following marriage the respondent was living apart from her husband on a permanent or indefinite basis - whether a special reason exists in the particular case why the respondent should not be treated as a member of a couple - whether overpayment of benefits - whether any debts should be written off or waived - the decision of the Social Security Appeals Tribunal is set aside and instead it is decided that the respondent is not to be treated as a member of a couple until 9 February 2007 and matter remitted for calculation of overpayment of family tax benefit and child care benefit
Held: The decision of the Social Security Appeals Tribunal is set aside and instead I decide that Tracey Robinson is not to be treated as a member of a couple until 9 February 2007. I remit the matter to the Secretaries to calculate the amount of any overpayment of family tax benefit and child care benefit.
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Taxation
Bui and Commissioner of Taxation
[2008] AATA 666; 31/7/2008; Deputy President DG Jarvis
TAXATION - amended assessments of income tax - time limit on amendment of assessments - whether applicant guilty of fraud or evasion - onus of proof on applicant to prove absence of fraud or evasion - methodology of Commissioner in amending assessments - onus of proving amended assessments flawed or excessive - remission of penalty - delay in amending original assessments - failure of applicant to adduce relevant evidence - decisions under review affirmed.
PRACTICE AND PROCEDURE - hearing on the papers - applicant not prepared to call evidence - issues of fraud or evasion of income tax - consideration of matters relevant to discretion to hear application on the papers.
Held: The Tribunal affirms the decisions under review.
Latif and Commissioner of Taxation
[2008] AATA 675; 4/8/2008; Senior Member KS Levy RFD
TAXATION - Income Tax - claim for motor vehicle and business expenses - applicant endures the burden of proof - log book method not justified as a basis for claiming deductions for motor vehicle expenses - probative evidence needed for business expenses' claim - both claims not justified - decisions under review affirmed.
Held:
- The decisions under review are affirmed.
- I remit the calculation of motor vehicle expenses back to the Commissioner to consider adopting either the 12 percent of original cost method or, the one-third of actual expenses method.
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Veterans' Affairs
Brown and Repatriation Commission
[2008] AATA 669; 31/7/2008; Ms R Perton, Member
VETERANS' AFFAIRS - pension at special rate - whether war caused conditions alone cause of inability to work - decision
Held: The Tribunal sets aside the decision under review and substitutes a decision that Mr Brown is entitled to receive a pension at the special rate.
Cannon and Repatriation Commission
[2008] AATA 662; 31/7/2008, Mr JG Short, Member
VETERANS' AFFAIRS - veterans' entitlements - operational service - claim that alcohol dependence was war-caused - inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse - decision under review affirmed
Held: The Tribunal affirms the decision under review.
Glasby and Repatriation Commission
[2008] AATA 664; 31/7/2008; 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 post traumatic stress disorder - diagnosis of anxiety disorder, depressive disorder and alcohol dependence - clinical onset of anxiety disorder, depressive disorder and alcohol dependence - reasonable hypothesis of relevant relationship to service raised for anxiety disorder and alcohol dependence - satisfied beyond reasonable doubt that conditions not attributable to eligible war-service - decision under review affirmed
VETERANS' AFFAIRS - Veterans' Entitlements - pension payable at 80% of the general rate - veteran not able to undertake remunerative work for more than 8 hours per week due to psychiatric conditions not war-caused - earnings-related rate of pension not payable -- decision under review affirmed
Held: The Tribunal affirms the decisions under review.
Raspe and Repatriation Commission
[2008] AATA 660; 31/7/2008; Mr JG Short, Member
VETERANS' AFFAIRS - veterans' entitlements - operational service - claim that alcohol dependence was war-caused - consideration of Statement of Principles - being woken by a scare charge - witnessing Filippino assaulted with a gun - witnessing retrieval of a body hung from a bridge - observing blood and possibly body under a tarpaulin on the deck of a swift boat - decision set aside
Held: The Tribunal:
- sets aside the decision under review and substitutes a new decision that Mr Raspe's alcohol dependence was war-caused with effect from 4 February 2004, being a dated three months prior to the date of lodgement of the original claim; and
- remits the issue of assessment to the Commission for determination.
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