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AAT Bulletin

Issue No. 3/2015	19 January 2015
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
AAT Recent Decisions
Compensation
Immigration and Citizenship
Practice and Procedure
Social Security
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised

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.  
Compensation
Colombo and Australian Postal Corporation [2014] AATA 10; 13/1/2015; Senior Member PW Taylor SC

Employee of licensed corporation – disc herniation – pain – underlying cervical spine degeneration – whether applicant has a compensable injury as defined by the Safety, Rehabilitation and Compensation Act 1988 – decisions affirmed

Ripper and Australian Postal Corporation [2015] AATA 15; 14/1/2015; Senior Member GD Friedman

Whether return to work program was a valid and suitable rehabilitation program – refusal or failure to undertake rehabilitation program – meaning of to undertake – whether reasonable excuse  

Sandercock and Military Rehabilitation and Compensation Commission [2015] AATA 18; 15/1/2015; Deputy President SD Hotop

Commonwealth employees – applicant performed National Service in 1958 and 1959 and served in Citizen Air Force and Royal Australian Air Force General Reserves from 1962 to 1970 – applicant exposed to noise from gunfire during service – applicant claimed compensation for hearing loss in 2011 – Tribunal not satisfied that applicant’s hearing loss causally related to service – respondent prejudiced by applicant's failure to give timely notice of hearing loss – applicant's failure to give timely notice of hearing loss and to make claim for compensation within prescribed period not occasioned by mistake, absence from Australia or other reasonable cause – applicant not entitled to compensation for hearing loss – decision under review affirmed
Saunders and Telstra Corporation Limited [2015] AATA 8; 12/1/2015; Deputy President SA Forgie
Election to institute action or proceeding against Commonwealth for damages for non-economic loss following determination that compensation payable for permanent impairment in relation to back injury – damages recovered – subsequent claim for compensation for psychological condition resulting from back injury – liability for injury accepted but liability for permanent impairment resulting from psychological condition refused on basis damages recovered in action instituted following election – election related only to back injury but action related to damages arising out of accident in which back injury one of injuries sustained – compensation not payable where damages recovered – decision affirmed
Immigration and Citizenship
Mashoor and Minister for Immigration and Border Protection [2015] AATA 11; 13/1/2015; Senior Member RW Dunne

Application for citizenship – refusal by the delegate – general residence requirement not met – whether applicant was unlawful non-citizen – exercise of discretion – discretion not exercised – decision under review affirmed
Practice and Procedure
Krivoshev and Secretary, Department of Employment [2015] AATA 12; 14/1/2015; Senior Member N Isenberg

Extension of time to lodge application for review – whether acceptable explanation for delay – whether applicant rested on rights – merits of substantive application – extension of time granted
Social Security
Birch and Secretary, Department of Social Services [2015] AATA 3; 5/1/2015; Miss EA Shanahan, Member
Pensions, benefits and allowances – disability support pension – applicant has Down Syndrome − intellectual disability and late onset epilepsy – New Zealand citizen – in receipt of a pension in New Zealand – born in the United Kingdom – failure to satisfy the requirements of the Social Security Agreement between the Government of Australia and the Government of New Zealand (New Zealand Agreement) – decision affirmed

Ell and Secretary, Department of Social Services [2015] AATA 14; 14/1/2015; Dr M Denovan, Member

Pensions, benefits and allowances – disability support pension – DSP – 20 points or more under the Impairment Tables – decision under review affirmed

Harper and Secretary, Department of Social Services [2015] AATA 21; 16/1/2015; Senior Member AC Cotter

Disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – applicant did not satisfy legislative criteria within the relevant period or subsequent 13 weeks – decision under review affirmed
Housego and Secretary, Department of Social Services [2015] AATA 7; 9/1/2015; Deputy President K Bean
Allowances – Newstart – connection and reconnection failures – reconnection penalty – whether reasonable excuse – cancellation of Newstart – whether applicant qualified for payment – refusal to enter into Employment Pathway Plan – decisions under review affirmed

Tavili and Secretary, Department of Social Services [2015] AATA 19; 15/1/2015; Senior Member AC Cotter

Newstart allowance – disability support pension – DSP – compensation payment – preclusion period – compensation charge recoverable by Centrelink – decision set aside and substituted – preclusion period altered – periodic compensation amount paid to be disregarded and treated as not having been made – recalculation of compensation charge recoverable by Centrelink

Walker and Secretary, Department of Social Services [2015] AATA 16; 14/1/2015; Dr M Denovan, Member

Pensions, benefits and allowances – age pension payment – compensation – statutory objectives – affected payment – preclusion period – whether special circumstances – assessment of legal expenses – financial hardship – decision under review affirmed
Veterans' Affairs
Lightowlers and Repatriation Commission [2015] AATA 17; 15/1/2015; The Hon B Tamberlin QC, Deputy President and Dr S Toh, Member

Disability pension – conditions of thymoma, autoimmune haemolytic anaemia and cryptococcoma of the lung – whether conditions are war-caused – operational service – decision under review set aside

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
Boskoski v Secretary, Department of Social Services | [2014] AATA 915
Xardia v Comcare | [2014] AATA 487
Minister for Immigration and Border Protection v Farag & AAT | [2014] AATA 927
Deane v Secretary, Department of Social Services & AAT | [2014] AATA 970
Appeals finalised
CASE NAME | AAT reference | court Reference
Comcare v Martin | [2014] AATA 553 | [2015] FCA 4

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AAT Bulletin		 issue 3/2015 aat