AAT Bulletin
Issue No. 10/2012	3 DECEMBER 2012
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
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

Jarrett and Military Rehabilitation and Compensation Commission [2012] AATA 837; 27/11/2012; Senior Member RG Kenny

Military service in Australian Army – Work related injury or disease – Seborrhoeic dermatitis of the ears – No medical evidence to support relationship between disease and army service – Respondent not liable to pay compensation for incapacity or impairment – Decision under review affirmed

Freedom of Information

Francis and Department of Defence [2012] AATA 838; 27/11/2012; Deputy President DG Jarvis

Application for amendment of personal records – Consideration of Australian Book of Reference 1991 – Naval and Medical Hospital Instructions (ABR 1991) – Meaning of "guidance" – Meaning of "have regard to" – Direction to amend record of opinion of medical officer re suitability for service on submarines – Reviewable decision not to amend records otherwise affirmed

Immigration

Mirik and Minister for Immigration and Citizenship [2012] AATA 835; 26/11/2012; Deputy President JW Constance

Cancellation of a Class BF Transitional (Permanent) visa – Direction [no. 55] – Visa refusal and cancellation under s 501 Migration Act 1958 (Cth) – Character test – Substantial criminal record – Primary considerations – Protecting the Australian community from harm – The seriousness and nature of the conduct – The risk that the conduct may be repeated – Strength, duration and nature of ties to Australia – Australia’s non-refoulement obligations – Other considerations – Effect on members of family – Extent of any impediments if removed from Australia – Compensation to be paid to victim –  Decision under review affirmed

Paniora and Minister for Immigration and Citizenship [2012] AATA 766; 5/11/2012; Senior Member D Letcher, QC

Visa cancellation – Character test – Substantial criminal record – Ministerial Direction No 55 applied – Protection of the Australian community – Risk of future harm unacceptable – Decision under review affirmed

Wu and Minister for Immigration and Citizenship [2012] AATA 834; 26/11/2012; Senior Member JF Toohey

Visa cancellation – Substantial criminal record – Applicant convicted of intentionally importing child pornography offence material and knowingly possessing child exploitation material decision – Application of Direction 55 – Relevant considerations – Decision under review affirmed

Practice and Procedure

Scerri and Comcare [2012] AATA 791; 13/11/2012; Mr S Webb, Member

Summons to a third party to produce documents – Objection on grounds of abuse of process, oppression, relevance and fishing – No legitimate purpose – Summons set aside

Social Security
Lim and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 773; 6/11/2012; Senior Member AK Britton

Disability support pension – Whether applicant has an impairment rating of 20 or more under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension – Whether any or all of those conditions were fully diagnosed, treated and stabilised – Applicability of Table 20 – Decision under review affirmed

Peronie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 842; 29/11/2012; Dr K Breen, Member

Disability support pension – Lumbar disc prolapse – Chronic depression and anxiety – Conditions not fully treated or stabilised – Decision under review affirmed   

Pham and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 839; 27/11/2012; Ms R Perton, Member

Youth allowance – Cancellation due to respondent’s findings regarding relationship status of applicant’s parents – Fresh application for youth allowance – Start date – Impact of application to Social Security Appeals Tribunal more than 13 weeks after decision by authorised review officer – Decision under review affirmed

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Lind [2012] AATA 840; 28/11/2012; Senior Member BJ McCabe

Age pension – Valuation of an asset – Principal home exempt – Land adjacent to principal home on separate title – Discretion to treat land as being on same title – Definition of value – Implications surrounding providing legal access – Decision set aside and remitted

Tekiela and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 833; 26/11/2012; The Hon RJ Groom AO, Deputy President

Age pension – Applicant in Australia on visitor’s visa only – Now residing in Poland - Whether an Australian resident – Social Security (International Agreements) Act 1999 – Agreement between Australia and Poland – Applicant not an Australian resident – No discretion – Decision under review affirmed

Taxation

Bocaz and Commissioner of Taxation [2012] AATA 847; 30/11/2012; Senior Member G Lazanas

Income tax – Deduction claimed by Applicant in respect of share of interest expenses and other expenses relating to residential properties tenanted to ex-husband and son – Whether non-commercial arrangements – Decision set aside and remitted for reconsideration

Hancox and Commissioner of Taxation [2012] AATA 836; 27/11/2012; Senior Member RW Dunne

Income tax – Living-away-from-home allowance – Travel allowance – Fly-in fly-out worker – Claims for work-related travel expenses – Substantiation – Whether assessment excessive – Administrative penalty – Recklessness – Objection decision under review affirmed

Veterans' Affairs

Applicant 22 of 2012 and Repatriation Commission [2012] AATA 830; 23/11/2012; Ms Hogan, Member

Service Pension – War Widow’s Pension – Service Pension Income Test – Similar in Character – Whether the British and Australia War Widow’s Pensions are Similar in Character 

Neal and Repatriation Commission [2012] AATA 843; 30/11/2012; Senior Member AF Cunningham

Defence service – Whether multiple sclerosis was materially contributed to or aggravated by service – Claimed that delay of diagnosis and stress and anxiety resulting from category 2 stressor suffered during service materially aggravated the disease – Tribunal found no causal connection between service and multiple sclerosis disease nor a category 2 stressor as defined in the SOP – Decision under review affirmed

Simpson and Repatriation Commission [2012] AATA 845; 30/11/2012; Deputy President RP Handley and Dr SH Toh, Member

Applicant suffering from Post-Traumatic Stress Disorder (PTSD) – Applicant served in Vietnam War – Whether Applicant’s PTSD is war-caused – Rate of disability pension – 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	
Commissioner of Taxation v Rigoli	[2012] AATA 757	
Appeals finalised
CASE NAME	AAT reference	court Reference	
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Abbott	[2011] AATA 754
	[2012] FCAFC 172
[2012] FCA 481	

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.