Issue No. 5/2013	4 February 2013
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.  
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Contents

AAT Recent Decisions
Civil Aviation
Compensation
Immigration and Citizenship
Practice and Procedure
Social Security
Taxation
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.  
Civil Aviation
Gosman and Civil Aviation Safety Authority [2013] AATA 48; 31/1/2013; Deputy President PE Hack SC
Medical certificate — Knowingly or recklessly made false or misleading statement in relation to application for medical certificate — Medical certificate refused — Applicant did not suffer from glaucoma at any time — Use of medication for longer than two consecutive weeks not demonstrated — Applicant failed to disclose sleep apnoea — Sleep apnoea treated successfully — Non-disclosure of sleep apnoea neither knowing nor reckless — Not satisfied applicant knowingly or recklessly made false or misleading statement in relation to application for medical certificate — Decision under review set aside and remitted
Compensation
Freeman and Fleetmaster Services Pty Ltd [2013] AATA 38; 25/1/2013; Deputy President PE Hack SC
Injury — Failure or refusal to undertake rehabilitation program — Right to compensation suspended — Reasonable excuse — Claimed allocated tasks unsuitable or caused pain — No particular skill required for allocated task — Unreasonable refusal to participate in explanation of allocated task — No contemporaneous complaint of pain — Not satisfied work undertaken caused pain — No explanation for subsequent failure to return to work — No reasonable excuse — Decision under review affirmed
Stefanoski and Telstra Corporation Limited [2013] AATA 50; 1/2/2013; Miss EA Shanahan, Member
Depressive disorder — Anxiety disorder — Panic — Attributed to workplace harassment and bullying — Back pain — Coexisting thyrotoxicosis — Disciplinary action — Reasonable administrative action undertaken in a reasonable manner — Decision under review affirmed
Practice and Procedure
Heath and Commonwealth Superannuation Corporation [2013] AATA 43; 31/1/2013; Senior Member N Isenberg
Jurisdiction — Defence force retirement benefits — Applicant resigned from Australian Army — Applicant requested assessment by Chief of Army that applicant could have been retired on grounds of invalidity or of physical or mental incapacity to perform his duties — Chief of Army delegate failed to inform respondent whether such grounds existed — No reviewable decision made by respondent — No jurisdiction
Social Security
Diriye and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 53; 1/2/2013; Dr A Frazer, Member
Pensions, benefits and allowances — Disability support pension — Qualification requirements — Residency and medical requirements — Decision under review affirmed
Dyer and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 51; 1/2/2013; Dr KS Levy RFD, Senior Member
Pensions, benefits and allowances — Disability support pension — Australian residency — Overseas portability — Legislative amendments to maximum periods of portability — Date of effect of amendments — Decision under review affirmed  
Egan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 39; 29/1/2013; Senior Member JF Toohey
Pensions, benefits and allowances — Special Benefit — Applicant subject to newly arrived resident waiting period — Whether waiting period should be waived — Whether substantial change in applicant’s circumstances beyond her control — Decision under review affirmed
Philp and Secretary, Department of Education, Employment and Workplace Relations [2013] AATA 52; 1/2/2013; Dr KS Levy RFD, Senior Member
Pensions, benefits and allowances — Calculation of Newstart allowance — Calculation of Parenting Payment — Working credit balances — Calculation of income reduction — Calculations of working credit balanced based on average daily rate — Decision under review affirmed
Taxation
Bayconnection Property Developments Pty Ltd and Ors and Commissioner of Taxation [2013] AATA 40; 29/1/2013; Deputy President SE Frost and Senior Member G Lazanas
GST — Input tax credits — Creditable acquisitions — Enterprise — Carrying on an enterprise — Penalty — Intentional disregard of the law — Penalty uplifted by 20% — Objection decisions affirmed
Dowling and Commissioner of Taxation [2013] AATA 49; 1/2/2013; Dr KS Levy RFD, Senior Member
Superannuation — Excess Non-Concessional Contributions Tax — Special circumstances — Discretion under Div 292 — Decision under review set aside
Herbert and Commissioner of Taxation [2013] AATA 42; 31/1/2013; Senior Member AF Cunningham
Extension of time — Assessments for 1989 and 1995 income years — Notice of objections lodged over 22 years and 12 years late — No reasonable explanation for delay in lodging — Documents unavailable — Prejudice to respondent — No reasonable prospects of success — Decision under review affirmed
Veterans' Affairs
Layton and Repatriation Commission [2013] AATA 37; 25/1/2013; Dr P McDermott RFD, Senior Member
Pensions and benefits — Widow's pension — Death of veteran — Operational service — Ischaemic heart disease — Statement of Principles — Posttraumatic stress disorder factor — DSM-IV-TR Diagnostic Criteria — Four-step procedure for determining whether death was war caused — Reasonable hypothesis connecting death with circumstances of service — Not satisfied beyond reasonable doubt that death was not war caused — Decision under review set aside and substituted  
Ockwell and Repatriation Commission [2013] AATA 44; 31/1/2013; Deputy President SD Hotop
Veterans’ entitlements — Disability pension — Applicant rendered defence service in Royal Australian Navy from 1968 to 1988 — Applicant performed heavy marine engineering tasks in course of defence service in period 1973-1984 — Applicant suffered osteoarthritis in right wrist in 2008 — Statement of Principles concerning osteoarthritis — Statement of Principles does not uphold contention that applicant’s osteoarthritis of right wrist on balance of probabilities connected with defence service — Applicant’s osteoarthritis of right wrist not defence-caused —  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	
Teariki Tera v Minister for Immigration and Citizenship & AAT	[2012] AATA 906	
Appeals finalised
CASE NAME	AAT reference	court Reference	
Weeks v Commissioner of Taxation 	[2011] AATA 499
	[2013] FCAFC 2
[2012] FCA 342	
Lilley v Comcare	[2011] AATA 472	[2013] FCA 26	
Telstra Corporation Ltd v Kotevski & AAT	[2012] AATA 136	[2013] FCA 27	
Zhonghua Zhang v Minister for Immigration and Citizenship & AAT	[2012] AATA 475
	MLG1079/2012	
Carrigan v Secretary, Department of Education, Employment and Workplace Relations	[2012] AATA 253	BRG666/2012	

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