Title: Sydney
Author: Maltby, Charles
Last saved by: Davidson, Susan
Company: ZOO Communications

AAT Bulletin

Issue No. 7/2014	24 February 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
AAT Recent Decisions
Compensation
Immigration and Citizenship
Practice and Procedure
Social Security
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised
Jurisdiction and legislative changes
New Norfolk Island jurisdiction

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
McCarthy and Military Rehabilitation and Compensation Commission [2014] AATA 83; 21/2/2014; Deputy President RP Handley
Transitional provisions – whether notice of injury given as soon as practicable according to Commonwealth Employees’ Compensation Act 1930 – injury reported to the Sick Bay – particulars of notice recorded on medical record 
Transitional provisions – whether failure to make a claim within six months the result of mistake or reasonable cause – ignorance of the right to make a claim not reasonable cause
Claim for injury arising out of medical treatment – Commonwealth not liable for knee injury – not liable to pay compensation for osteoarthritis arising from an operation to treat that injury – decision under review affirmed
Morales and Australian Postal Corporation [2014] AATA 82; 21/2/2014; Senior Member J Handley and Dr K Breen, Member
Applicant engaged in heavy manual work over 18–year period with the respondent – diagnosis of L4/5 disc protrusion – employment materially contributed to the injury – applicant incapacitated – respondent did not take reasonable steps to provide suitable employment – respondent liable and applicant entitled to compensation – applicant has a permanent impairment of 11% under Table 9.17 – decisions set aside
Ting and Comcare [2014] AATA 85; 21/2/2014; Deputy President RP Handley
Definition of disease – ailment – mental disorder – must be outside the boundaries of normal mental functioning and behaviour – contributed to a significant degree by employment
Definition of injury – excludes diseases or injuries resulting from reasonable administrative action taken in a reasonable manner – management of an employee’s performance generally reasonable – reasonable manner – consideration of the particular circumstances of the individual – administrative action not taken in a reasonable manner
Immigration and Citizenship
El-Masri and Minister for Immigration and Border Protection [2014] AATA 75; 19/2/2014; Senior Member G Ettinger
Australian Citizenship application – Failure to satisfy character grounds – Applicant subject to good behaviour bond – Tribunal prohibited from approving application due to good behaviour bond still on foot – Decision under review affirmed

Hamo and Minister for Immigration and Border Protection [2014] AATA 77; 10/2/2014; Deputy President JW Constance
Good character – overseas penal clearance – decision under review affirmed
Tawhi and Minister for Immigration and Border Protection [2014] AATA 74; 18/2/2014; Deputy President SD Hotop
Visa – cancellation of visa – applicant a citizen of New Zealand – applicant has lived in Australia from December 2009 when aged 23 years – applicant convicted of sexual offences against child aged 11 in 2012 – applicant sentenced to 4 years’ imprisonment – applicant does not pass character test – discretion to cancel visa – primary consideration of protection of Australian community outweighs other relevant primary considerations and other relevant  considerations – risk of future serious harm to Australian community by applicant unacceptable – preferable decision is that visa be cancelled – decision under review affirmed
Practice and Procedure
Kann and Decision Maker [2014] AATA 73; 14/2/2014; Mr S Webb, Member
Jurisdiction – Defence service terms and conditions – rent allowance determination – Defence redress of grievance procedure – no jurisdiction
Taylor and Military Rehabilitation and Compensation Commission [2014] AATA 78; 20/2/2014; Senior Member RM Creyke
COMPENSATION – extension of time – two delays in application – significant delay of time between injury and decision – delay between decision and appeal – extension of time granted
Social Security
Budisa and Secretary, Department of Social Services [2014] AATA 79; 20/2/2014; Senior Member JF Toohey
Disability support pension – multiple impairments – whether conditions fully diagnosed treated and stabilised – decision under review affirmed
Flatley and Secretary, Department of Social Services [2014] AATA 84; 21/2/2014; Dr P McDermott RFD, Senior Member 
Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Applicant did not participate in program of support – Decision affirmed
Gobin and Secretary, Department of Social Services [2014] AATA 76; 19/2/2014; Senior Member RM Creyke
Age pension – pension bonus scheme – partnered verses single rates – calculation of pension bonus – means testing
Pelka and Secretary, Department of Social Services [2014] AATA 81; 21/2/2014; Senior Member G Ettinger
Pensions – disability support pension – whether Applicant has conditions which have been diagnosed, treated and stabilised within the requisite period – whether Applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed
Thorne and Secretary, Department of Social Services [2014] AATA 72; 18/2/2014; Ms S Taglieri, Member
Cancellation of disability support pension following review – Osteoarthritis of back and lower limbs, diabetes, with complication of peripheral neuropathy – Impairment points available under Impairment Tables operating after 1.1.12 – Whether continuing inability to work satisfied – Decision under review affirmed
Veterans' Affairs
Ipson and Repatriation Commission [2014] AATA 67; 14/2/2014; Senior Member RG Kenny
Pensions and benefits – Service in Australia as Ammunition Examiner with Australian Army – Danger not incurred by hostile forces of the enemy – Qualifying service for service pension not rendered – 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
The Study and Prevention of Psychological Diseases Foundation Inc v Commissioner of Taxation | [2013] AATA 919
Smith v Comcare | [2014] AATA 28
Appeals finalised
CASE NAME | AAT reference | court Reference

Preston Super Access Pty Ltd v Australian Trade Commission

[2013] AATA 537

NSD1774/2013
[2013] FCA 1450

Cao v Secretary, Department of  Families, Housing, Community Services and  Indigenous Affairs | [2013] AATA 591 | [2014] FCA 52
Kennedy v Comcare | [2013] AATA 696 | [2014] FCA 82

Dickinson v Commissioner of Taxation

[2013] AATA 25

[2014] HCATrans 27
[2013] FCAFC 99

Onorato v Comcare | [2013] AATA 383 | ACD70/2013
Nelson v Commissioner of Taxation | [2012] AATA 579 | [2014] FCA 57

Jurisdiction and legislative changes
This section of the Bulletin provides a summary of legislative changes that affect the AAT, including changes to the AAT’s jurisdiction to review decisions.  Information about the AAT’s jurisdiction can also be found on the AAT website.
New Norfolk Island jurisdiction 
The Administrative Appeals Tribunal Amendment (Norfolk Island Land Valuation Decisions) Regulation 2014 (Norfolk Island Regulations) has amended the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations) in relation to the AAT’s Norfolk Island jurisdiction.  The amendments were approved by the Governor-General on 17 February 2014 and commenced on 20 February 2014, the day after they were registered on the Federal Register of Legislative Instruments.  
The Norfolk Island Regulations has amended the AAT Regulations by: 
•	listing in Schedule 4, the Norfolk Island Land Valuation Act 2012, to provide that the AAT now has jurisdiction to review decisions made under subsection 79(1) of that Act, and
•	removing all references to the Norfolk Island ‘executive member’ and replacing them with ‘Minister’ for consistency with terminology in Norfolk Island legislation.

© Commonwealth of Australia 2014

With the exception of the Commonwealth Coat of Arms and any third party material, this work is licensed under a Creative Commons Attribution 3.0 Australia Licence.  Content from this publication should be attributed as: Administrative Appeals Tribunal, AAT Bulletin.
To the extent that copyright subsists in third party material, it remains with the original owner and permission may be required to reuse the material.
The terms under which the Coat of Arms can be used are detailed on the following website: http://www.itsanhonour.gov.au/coat-arms/. 
Enquiries regarding the licence are welcome at aatweb@aat.gov.au. 
This licence is limited to the AAT Bulletin and does not extend to the full text of AAT decisions.  Separate licence terms for AAT decisions can be found on AustLII.  Those terms provide that section 182A of the Copyright Act 1968 applies.

AAT Bulletin		 issue 7/2014 aat