Title: AAT Bulletin Issue 01/2014, 13 January 2014
Author: AAT
Last saved by: Novello, Mary
Company: ZOO Communications

AAT Bulletin

Issue No. 1/2014	13 January 2014
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. The Bulletin occasionally includes information on legislative changes that affect the AAT and other important developments.  
It is recommended that the Bulletin be read on-line. This has the advantage of allowing the reader to use hyperlinks to access the full text of cases and other internet sites mentioned in the Bulletin. 
The AAT does not make any representation or warranty about the accuracy, reliability, currency or completeness of any material contained in this Bulletin or on any linked site. While the AAT makes every effort to ensure that the material in the Bulletin is accurate and up-to-date, you should exercise your own independent skill and judgement before you rely on it. Information contained in this Bulletin is not legal advice and is intended as a general guide only.  You should rely on your own advice or refer to the full cases and legislation in relation to any proceedings.
Enquiries regarding this publication may be directed to aatweb@aat.gov.au. 
Contents
Statements of Principles
New Statements of Principles
Amended Statements of Principles
AAT Recent Decisions
Civil Aviation
Compensation
Freedom of Information
Immigration and Citizenship
Practice and Procedure
Social Security
Superannuation
Taxation
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised

Statements of Principles
This section of the Bulletin provides information on recent developments in relation to Statements of Principles made by the Repatriation Medical Authority for the purposes of the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. 

New Statements of Principles
The Tribunal has been advised that the Repatriation Medical Authority has made the following new Statements of Principles.  They take effect from 15 January 2014.

Morbid obesity No. 6 of 2014
http://www.comlaw.gov.au/Details/F2014L00022
Narcolepsy No. 7 of 2014
http://www.comlaw.gov.au/Details/F2014L00023

Narcolepsy No. 8 of 2014
http://www.comlaw.gov.au/Details/F2014L00025

Sick sinus syndrome No. 16 of 2014
http://www.comlaw.gov.au/Details/F2014L00024

Chronic fatigue syndrome No. 11 of 2014
http://www.comlaw.gov.au/Details/F2014L00013
Chronic fatigue syndrome No. 12 of 2014
http://www.comlaw.gov.au/Details/F2014L00015

Dental pulp and apical disease No. 3 of 2014
http://www.comlaw.gov.au/Details/F2014L00014

Dental pulp and apical disease No. 4 of 2014
http://www.comlaw.gov.au/Details/F2014L00009

Dermatomyositis No. 10 of 2014
http://www.comlaw.gov.au/Details/F2014L00011

Dermatomyositis No. 9 of 2014
http://www.comlaw.gov.au/Details/F2014L00008

Fibromyalgia No. 13 of 2014
http://www.comlaw.gov.au/Details/F2014L00016

Fibromyalgia No. 14 of 2014
http://www.comlaw.gov.au/Details/F2014L00018

Heart block No. 1 of 2014
http://www.comlaw.gov.au/Details/F2014L00007

Heart block No. 2 of 2014
http://www.comlaw.gov.au/Details/F2014L00005

Morbid obesity No. 5 of 2014
http://www.comlaw.gov.au/Details/F2014L00010

Sick sinus syndrome No. 15 of 2014
http://www.comlaw.gov.au/Details/F2014L00020

Amended Statements of Principles
The Tribunal has been advised that the Repatriation Medical Authority has made the following instruments amending the Statements of Principles for the specified conditions. They take effect from 15 January 2014.

Alzheimer-type dementia No. 17 of 2014
http://www.comlaw.gov.au/Details/F2014L00026

Alzheimer-type dementia No. 18 of 2014
http://www.comlaw.gov.au/Details/F2014L00028
AAT Recent Decisions
This section of the Bulletin provides information about decisions recently published by the AAT.  Only AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Civil Aviation
Bolton and Civil Aviation Safety Authority [2013] AATA 941; 23/12/2013; Deputy President PE Hack SC
Cancellation of medical certificates – Skull fracture – Extradural haemorrhage – Risk of posttraumatic seizures – Whether applicant meets medical standard – Whether applicant has safety-relevant condition – Whether applicant suffering from safety-relevant effects of head injury – Whether likely to endanger safety of air navigation – Decision set aside and substituted
Compensation
Applicant M and Comcare [2013] AATA 946; 24/12/2013; Senior Member J Toohey and Dr M Couch, Member
Cervical spine – Fusion surgery – Agreed permanent impairment – Whether injury related to employment – Whether frank injury – Whether aggravation or acceleration of underlying degenerative disease – Tribunal satisfied applicant suffered injury in the course of his employment – Decision under review set aside – Matter remitted for assessment
Armstrong and Military Rehabilitation and Compensation Commission [2013] AATA 929; 20/12/2013; Senior Member BJ McCabe
Pensions and benefits – New injury not connected to service – Link between accepted injuries and requested assistance – Liability for travel costs – Limited expert medical opinion provided – Decisions under review affirmed
Fisher and Military Rehabilitation and Compensation Commission [2013] AATA 934; 23/12/2013; Senior Member RG Kenny
Service in the Australian Regular Army – Claim for chronic obstructive pulmonary disease due to cigarette smoking – No evidence to support relationship between smoking and service – Respondent not liable to pay compensation for incapacity or impairment – Decision under review affirmed
Hooley and Comcare [2014] AATA 6; 9/1/2014; Deputy President PE Hack SC
Normal weekly earnings – Whether normal weekly earnings include overtime component – Whether normal weekly earnings include enhanced responsibilities allowance component – Decision set aside and remitted

Hunt and Comcare [2013] AATA 931; 20/12/2013; Senior Member RM Creyke
Commonwealth Employees – Two claims – Adjustment disorder, irritable bowel syndrome, migraines and herpes zoster – Whether some conditions aggravated by employment – Whether contributed to by employment to a significant degree – Whether not compensable because due to reasonable administrative action conducted in a reasonable manner
Magro and Comcare [2013] AATA 938; 23/12/2013; Senior Member RM Creyke
Commonwealth Employees – Adjustment disorder – Whether the condition is an ailment – Whether contributed to by employment to a significant degree – Whether not compensable because due to reasonable administrative action undertaken in a reasonable manner – Decision under review affirmed
Martinez and Comcare [2013] AATA 949; 24/12/2013; Mr S Webb, Member
Psychological injury claim – Decision to reject the claim overturned by Tribunal at first hearing – Tribunal decision upset on appeal and remitted to be decided according to law – Meaning of ‘reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment’ – Disease a result of exclusionary factors – Decision affirmed
Prater and Comcare [2014] AATA 7; 9/1/2014; Senior Member RM Creyke
Commonwealth Employees – Shoulder injury – Injury claimed to be sustained when lifting bags – Whether injury arose out of or in the course of employment – Whether notification given ‘as soon as practicable’ – Decision set aside and substituted
Rusten and Telstra Corporation Limited [2014] AATA 8; 10/1/2014; Senior Member AK Britton
Osteoarthritis – Liability accepted
Freedom of Information
Nikjoo and Minister for Immigration and Border Protection [2013] AATA 921; 20/12/2013; Senior Member AK Britton
Access and exemptions – Whether access to requested documents would found an action for breach of confidence – The iniquity principle – Application of section 22 of the Freedom of Information Act 1982
PRACTICE AND PROCEDURE – Recusal application – Apprehended bias and negligence–Application misconceived – Application refused
PRACTICE AND PROCEDURE – Summons –– Grounds for refusing request to issue
Immigration and Citizenship
DGKQ and Minister for Immigration and Border Protection [2014] AATA 4; 8/1/2014; Ms R Perton, Member
Cancellation of visa – character test – substantial criminal record – protection of Australian community – risk to the Australian community should the conduct be repeated – strength, duration and nature of ties to Australia – whether risk of future harm acceptable – exercise of discretion – decision under review affirmed
Hoang and Minister for Immigration and Border Protection [2013] AATA 932; 23/12/2013; The Hon B Tamberlin QC, Deputy President
BB Subclass 155 (Five Year Resident Return) visa – Cancellation – Character test – Substantial criminal record – Whether visa should be cancelled – Primary considerations – Other considerations – Decision set aside
Practice and Procedure
Liu and Australian Securities and Investments Commission [2013] AATA 864; 3/12/2013, Senior Member J Redfern
Reinstatement – Dismissal for failure to comply with a direction – Applicant no longer represented – Whether there was an error – Application granted
Peter and Secretary, Department of Social Services [2014] AATA 2; 7/1/2014; The Hon RJ Groom AO, Deputy President
Extension of time – length of delay – prospects of success – substantive application lacking in merit – application to extend time refused
Van and Secretary, Department of Social Services [2013] AATA 951; 25/11/2013; Senior Member GD Friedman
Extension of time to lodge application for review – Application refused
Social Security
Bronson and Secretary, Department of Social Services [2013] AATA 937; 23/12/2013; Senior Member RG Kenny
Pensions, Benefits and Allowances – Newstart allowance – Applicant not compliant with notification requirements – Failure to advise Centrelink of relevant income information – Overpayment raised – Debt due to the Commonwealth with no basis to write off or waive – Debt confirmed by Social Security Appeals Tribunal (SSAT) – Decision set aside by SSAT and remitted to respondent for recalculation of amount of debt in accordance with directions – Application for review by Administrative Appeals Tribunal lodged prior to variation of debt – Imposition of a 10% penalty – Decision under review affirmed
Crockett and Secretary, Department of Social Services and Anor [2013] AATA 928; 20/12/2013; Ms R Perton, Member
Family tax benefit – Shared care – Whether child chose not to come to parent – Whether parent entitled to payment for some weeks even though child not with him – Dispute over nature of notification of non–attendance – Decision affirmed
Davis and Secretary, Department of Social Services [2013] AATA 933; 23/12/2013; Senior Member RG Kenny
Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment – Impairment Tables – Evidence of conditions being fully diagnosed, treated, stabilised and permanent – Overall impairment rating of 10 points – Qualifying requirements for disability support pension not met during the relevant period – Decision under review affirmed
Guy and Secretary, Department of Social Services [2013] AATA 943; 23/12/2013; Ms R Perton, Member
Age pension – Applicant married – Whether a member of a couple for the purposes of the Social Security Act 1991 – Whether applicant should not be treated as a member of a couple – Total combined income exceeded eligibility requirements – Whether superannuation pension should be considered as part of husband’s income – Decision affirmed
Rees and Secretary, Department of Social Services [2013] AATA 939; 23/12/2013; Deputy President PE Hack SC
Eligibility – Disability support pension – Whether condition fully diagnosed, treated and stabilised – Whether impairment rating of 20 points under impairment tables – Decision affirmed
Tallboys and Secretary, Department of Social Services [2013] AATA 950; 19/12/2013; Senior Member AF Cunningham
Disability support pension – Date of eligibility – Deemed claim – Contact made prior to written claim – Decision under review affirmed
Superannuation
Adiga and Australian Securities and Investments Commission [2013] AATA 952; 12/12/2013; Senior Member PW Taylor SC
Statutory criteria for registration – Alternative interpretations proposed by applicant and registration authority – Authority preferring its proposed construction and determining that criteria not satisfied – No factual dispute – Authority’s determination that criteria were not satisfied constituted a decision and was amenable to review – Decision under review affirmed
Taxation
Gutteridge and Commissioner of Taxation [2013] AATA 947; 24/12/2013; Senior Member FD O’Loughlin
Small business relief – Whether discretionary trust controlled by a non-director of corporate trustee – Penalty – Decision set aside and substituted
Mathoura Property Pty Ltd as Trustee for the Mathoura Property Trust [2013] AATA 922; 20/12/2013; Deputy President FJ Alpins
Administrative penalties – False or misleading statement – Whether shortfall amount resulted from a failure to take reasonable care – Voluntary disclosure – Whether remission of penalty warranted – Taxation Administration Act 1953 (Cth), ss 284–75, 284–90, 284–225 and 298–20 of Schedule 1 – Decision under review varied
PNGR and Anor and Commissioner of Taxation [2013] AATA 942; 23/12/2013; Senior Member BJ McCabe
Income tax – Assessable income – Tobacco distribution business – Real property assets – Whether under–reporting of assessable income – Lack of evidence of source of income – Whether fraud or evasion – Imposition of penalties – Objection decisions under review affirmed
Simon Harland as Trustee for the PCS Global Discretionary Trust and Commissioner of Taxation [2013] AATA 930; 20/12/2013; Deputy President SA Forgie
GOODS AND SERVICES TAX – Whether meets criteria for an input tax credit – Whether acquisition and supply of rights under contract – Entity claiming input tax credit not party to contract – Whether consideration – Assessment of penalty – Objection decisions affirmed

PRACTICE AND PROCEDURE – Applications for review – Whether an application to Tribunal for review of objection decision reviewing objections to separate assessments or decisions should be regarded as a separate application for review of separate objection decision relating to separate assessments or decisions
XTJT and Commissioner of Taxation [2013] AATA 936; 23/12/2013; Deputy President IR Molloy
Assessment of income – Whether deductions incurred in carrying on business – Whether deductions incurred in gaining or producing assessable income – Objection decisions affirmed
Yeates and Commissioner of Taxation [2014] AATA 10; 10/1/2014; Senior Member D Letcher QC
Income Tax – Allowable deductions – Whether deductions for outgoings of a private or domestic nature – Whether expenditure on travel between home and workplace an allowable deduction – Administrative penalty – Discretion to remit the penalty – Decision under review affirmed
YPFD and Commissioner of Taxation [2014] AATA 9; 10/1/2014; Senior Member G Ettinger
Whether the Applicant is in the business of letting rental properties – Deductibility of items claimed – Difficulties with substantiation – Objection decision affirmed in part
Veterans' Affairs
Hutton and Repatriation Commission [2013] AATA 940; 23/12/2013; Senior Member BJ McCabe
Pensions and benefits – Widow's pension – Kind of death of veteran war caused – Level and history of salt intake – Decision under review set aside and remitted
Ralph and Repatriation Commission [2013] AATA 948; 24/12/2013; Ms R Perton, Member
Pension at special rate – Whether war caused conditions alone cause of inability to work – Claim lodged shortly after applicant’s 65th birthday – Whether applicant still working after 65th birthday – Whether 10 years of work in same field as employee or contractor – Decision under review affirmed
Appeals 
This section of the Bulletin provides information about appeals against AAT decisions that have been lodged or finalised.  Only appeals in relation to AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Appeals lodged
CASE NAME | AAT reference
Tran v Minister for Immigration and Border Protection & AAT | [2012] AATA 384
Deslandes v Repatriation Commission | [2013] AATA 800
Sunesis Pharmaceuticals Inc & Millenium Pharmaceuticals Inc v Commissioner of Patents | [2013] AATA 858
Williams v Minister for Immigration and Border Protection & AAT | [2013] AATA 923
Kamali v Minister for Immigration and Border Protection & AAT | [2012] AATA 368
Appeals finalised
CASE NAME | AAT reference | court Reference

National Australia Bank v Georgoulas

[2013] AATA 512
[2013] AATA 553

[2013] FCA 1412

Watsford v Commissioner of Taxation | [2012] AATA 815 | [2013] FCA 1389

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AAT Bulletin		 issue 1/2014 aat