AAT Bulletin
Issue No. 13/2017	27 March 2017
The AAT Bulletin is a weekly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals Divisions. The Bulletin also regularly includes a sample of decisions recently published in the AAT’s Migration & Refugee Division and Social Services & Child Support Division. It occasionally includes information on legislative changes that affect the AAT. 
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
Aviation
Citizenship
Compensation
Corporations
Freedom of Information
Migration
Practice and Procedure
Social Security
Taxation
Appeals
Appeals lodged
Appeals finalised
Recent developments
Use of DX discontinuing from 31 March 2017
Practice Direction updated

AAT Recent Decisions
This section of the Bulletin provides information about all decisions recently published in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals. This list also includes selected child support decisions published by the Social Services & Child Support Division and examples of recent decisions published by the Migration & Refugee Division.  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.
Aviation
Gold Coast Lifestyle Association Incorporated and Minister for Infrastructure and Regional Development [2017] AATA 368 (21 March 2017); Deputy President BJ McCabe; and Senior Member T Tavoularis
Infrastructure and Development  –  Airports  –  Gold  Coast  Airport  – Approval of Major Development Plan – Consideration of Environmental Impacts and other issues – consistency with Master Plan – power to impose conditions on approval.
Citizenship
Baijens and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 350 (21 March 2017); Deputy President SA Forgie
Acquisition of Australian citizenship by application – citizenship by conferral – refusal of approval given to a person becoming an Australian citizen – whether person meets the general residence requirement under s 21(2)(c) of the Australian Citizenship Act 2007 (Cth) – decision affirmed.
General residence requirement – ameliorating provision – not in Australia for the period of 12 months immediately before made application for citizenship – whether ameliorating provisions of s 22(9) apply only to periods of absence in 12 month requirement of 22(4)(c) or to periods of absence in both the four year requirement of s 22(4)(a) and the 12 month requirement of s 24(1)(c) – apply only to s 24(1)(c)
General residence requirement – ameliorating provision – applicant’s close and continuing association with Australia during period of absence in 12 month period – concerned only with association in periods of absence in 12 month period.
PRACTICE AND PROCEDURE – reference to extrinsic material – provision amended during course of debate on Bill – extrinsic material not clear – provision clear on its face – not an appropriate occasion on which to have regard to extrinsic material
Yang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 364 (23 March 2017); Senior Member AC Cotter
Application for Australian citizenship by conferral – spouse of Australian citizen – non-compliance with the general residence requirements – whether a close and continuing association with Australia – whether discretion in s 22(9) enlivened – decision under review affirmed

Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 (24 March 2017); Deputy President Dr Christopher Kendall
Good character – whether Tribunal satisfied the Applicant is of good character – previous convictions – traffic offences – mental health diagnosis – use of alcohol and cannabis – incidents of reported violence – Applicant found not to be of good character as insufficient time has lapsed – decision under review affirmed
Compensation
Ho and Australian Postal Corporation (Compensation) [2017] AATA 349 (21 March 2017); Miss EA Shanahan, Member
Postal delivery officer – claim for compensation arising from or in the course of employment – no clear diagnosis of injury or disease – cervical spine or left shoulder injury or ailment or both –limited medical investigation – anatomical source of symptoms unclear – matter remitted to the Respondent for appropriate assessment
Gharakhan and Comcare (Compensation) [2017] AATA 351 (21 March 2017); Deputy President, the Hon. Dennis Cowdroy OAM QC
Entitlement to medical treatment expenses – surgery at L2/3 level of spine – whether the treatment was obtained in relation to a compensable injury – compensable injury of sciatica – decision set aside and decision made in substitution
Corporations
Hill and Australian Securities and Investments Commission (Corporations) [2017] AATA 352 (21 March 2017); Deputy President Professor R Deutsch
Corporations – banning order – applicant disqualified from managing corporations for one year – whether requirements of s 206F have been met – whether Applicant’s behaviour warrants a banning order – whether Applicant’s conduct is causally related to losses suffered by creditors – applicant was not involved in any breach of duty or intention to deceive – decision under review set aside
Freedom of Information
Morris and Australian Information Commissioner (Freedom of information) [2017] AATA 363 (22 March 2017); Senior Member CR Walsh
Applicant declared a “vexatious applicant” by respondent – applicant repeatedly engaged in access actions – applicant’s repeated engagement involves an abuse of the process for the actions by unreasonably interfering with the operations of an agency – access actions engaged in by the applicant otherwise an abuse of the process for the actions – terms and conditions of declaration considered – decision under review affirmed

Migration
Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367     (24 March 2017); Deputy President Dr Christopher Kendall
Mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations considered – other relevant considerations considered – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed -- decision under review affirmed
Practice and Procedure
McKenzie and Comcare (Compensation) [2016] AATA 1100 (19 December 2016); Deputy President G Humphries
Interlocutory Application – extension of time – length of time to lodge application – where legal representatives failed to lodge application – delay on part of legal representatives affords applicant acceptable explanation – failure of legal representatives to lodge not determinative – application has weak prospects of success – weak prospects determinative factor – extension to lodge substantive application refused
Social Security
Cassar and Secretary, Department of Social Services (Social services second review) [2017] AATA 342 (20 March 2017); Senior Member A Nikolic AM CSC
Disability support pension – cancellation – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – 10 impairment points assigned for spinal condition – various conditions diagnosed but not fully treated or stabilised in relevant period – decision under review affirmed
De Bellis and Secretary, Department of Social Services (Social services second review) [2017] AATA 365 (24 March 2017); Ms DK Grigg, Member
Disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work – decision under review affirmed
Taxation
The Trustee for the Whitby Trust and Commissioner of Taxation (Taxation) [2017] AATA 343 (20 March 2017); Senior Member CR Walsh
Goods and services tax – margin scheme – real property acquired following exercise of a call option – whether option fee forms part of the consideration for the acquisition of the real property for the purpose of applying the margin scheme – objection decision set aside in part and remitted to Commissioner for reconsideration in accordance with recommendation set out in the Tribunal’s reasons for decision – objection decision otherwise affirmed

The Norwestern Trust and Commissioner of Taxation (Taxation) [2017] AATA 361 (22 March 2017); Professor R Deutsch, Deputy President
Goods and Services Tax – non-lodgement of BAS – notices of assessment issued – tax shortfall penalty assessment – administrative penalties – fraud and evasion – whether administrative penalties correctly imposed – whether Tribunal should exercise discretion to remit administrative penalty in whole or part – decision under review affirmed
Mills and Commissioner of Taxation (Taxation) [2017] AATA 362 (23 March 2017); Senior Member G Lazanas
Superannuation – excess contributions tax – whether non-concessional excess contributions can be disregarded or allocated to another financial year – whether special circumstances – decision under review affirmed  
Appeals
This section of the Bulletin provides information about appeals that have been lodged or finalised against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals Divisions.  Information is only included about appeals relating to AAT decisions that have been published on AustLII.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Appeals lodged
CASE NAME	AAT reference	
Australian Skills Quality Authority v Western Institute of Technology Pty Ltd	[2017] AATA 187	
Appeals finalised
CASE NAME	AAT reference	court Reference	
Kumar v Secretary, Department of Social Services	[2014] AATA 442	[2016] FCCA 640 
[2017] FCA 158	

Recent developments
Use of DX discontinuing from 31 March 2017
The AAT will cease DX membership (Document Exchange Mail) on 31 March 2017. 
If you use DX to provide documents to us, please update your records.
Check the contact us page on our website for alternative delivery and contact methods or call us on 1800 228 333 for assistance.
Practice Direction updated 
A new version of the Practice Direction 'Giving documents or things to the AAT' will commence 1 April 2017. 
The new version removes:
•	references to the DX (Document Exchange Mail); and
•	the online links: www.mrt-rrt.gov.au and https://ssatonline.ssat.gov.au/

The new version will be available on our website from 1 April 2017.

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