Title: AAT Bulletin Issue 22/2015 1 June 2015 [RTF version]
Author: AAT
Last saved by: Novello, Mary
Company: ZOO Communications

AAT Bulletin

Issue No.  22/2015	1 June 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
Civil Aviation
Compensation
Customs
Freedom of Information
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
Repacholi and Anor and Civil Aviation Safety Authority [2015] AATA 374; 28/5/2015; Senior Member S Penglis, Mr W Evans, Member
Aircraft maintenance – aircraft maintenance engineer licence – Certificate of Approval – breach of regulations – cancellation of licence – series of breaches – facts and circumstances – decision under review set aside
Wallace and Civil Aviation Safety Authority [2015] AATA 365; 27/5/2015; Senior Member E Fice
Aircraft maintenance – Certificate of Approval to conduct maintenance on class B aircraft – Breach of regulations – series of breaches – cancellation of Certificate of Approval – breach of conditions of stay order – decision under review affirmed
Compensation
Papaioannou and Australian Postal Corporation [2015] AATA 370; 28/5/2015; Senior Member J Handley
Applicant suffered back and neck injuries in motorcycle accidents travelling to and in the course of his work as a postal delivery officer – subsequent aggravation of lumbar and cervical disease by work activities – contributed to a significant degree by the employment – frank and traumatic tear of the left supraspinatus tendon – the injury arose out of or in the course of employment – tendon tear was not a disease and applicant did not make a wilful and false representation – also suffered adjustment disorder with mixed anxiety and depressed mood secondary to chronic pain – decisions set aside
Reardon and Comcare [2015] AATA 360; 26/5/2015; Ms S Taglieri, Member
Ear and hearing conditions – whether work caused or aggravated – hyperacusis determined to have been aggravated – aggravation caused to a significant degree by employment – decision set aside
Zoric and Australian Postal Corporation [2015] AATA 372; 28/5/2015; Senior Member E Fice
Entitlement to compensation – Employment related injury or disability – Causal relation between injury and incapacity – Applicant sustained right elbow injury – Ongoing symptoms not causally related to workplace injury – decision under review affirmed

Customs 
Studio Fashion (Australia) Pty Ltd and Chief Executive Officer of Customs [2015] AATA 366; 28/5/2015; Deputy President SA Forgie
Goods delivered duty paid – customs duty underpaid – collection of duty – whether Applicant is “owner of the goods” – whether discretion in collecting duty – decision affirmed
Freedom of Information
Secretary, Department of Prime Minister and Cabinet and Secretary, Department of Infrastructure and Regional Development and Sanderson (Party Joined) [2015] AATA 361; 27/5/2015; Deputy President SA Forgie
Exemptions – whether documents exempt or conditionally exempt – standing of Secretary, Department of Prime Minister and Cabinet – whether documents were submitted to Cabinet – whether documents created for the dominant purpose of submission to Cabinet – whether document reveals Cabinet deliberations or decisions – document would disclose deliberative matter – decision set aside
Immigration and Citizenship
Jafferi and Minister for Immigration and Border Protection [2015] AATA 347; 21/5/2015; Senior Member RW Dunne
Application for Australian citizenship – application refused on character grounds – criminal record – whether Applicant has reformed and is now of good character – decision under review set aside and remitted
Practice and Procedure
Devkota and Australian Skills Quality Authority [2015] AATA 356; 22/5/2015; Senior Member G Ettinger
Application for extension of time in which to lodge application for review of decision of ASQA – Applicant seeking compensation from various Commonwealth agencies – Tribunal has no jurisdiction in those matters – merits of case – extension of time refused
Social Security
Arkawazi and Secretary, Department of Social Services [2015] AATA 358; 25/5/2015; Mr S Webb, Member
Disability Support Pension – impairment rating – whether conditions are permanent – requirement for 20 impairment points not met – decision affirmed

Jones and Secretary, Department of Social Services [2015] AATA 362; 27/5/2015; Senior Member G Ettinger
Carer payment – carer allowance – whether temporary cessation in caring for Applicant’s mother during period of respite – Tribunal finds that Mr Jones ceased caring for his mother permanently on 11 December 2013 – Tribunal does not have jurisdiction to review cancellation of Applicant’s carer allowance  – decision under review set aside and substituted
PRACTICE AND PROCEDURE – carer allowance – whether Tribunal has jurisdiction to review decision of Respondent cancelling carer allowance not appealed from primary decision maker – Tribunal has no jurisdiction
Lai and Secretary, Department of Employment [2015] AATA 373; 27/5/2015; Senior Member PW Taylor SC
Allowances – newstart allowance – value of assets exceeds asset value limit – mortgage debt secured over multiple properties – mortgage debt to be apportioned – determination of asset values – decision affirmed
Matthews and Secretary, Department of Social Services [2015] AATA 363; 27/5/2015; Mr C Ermert, Member
Disability support pension – heart condition – depression – impairment tables – impairment rating – full treated – fully stabilised – whether 20 impairment points – decision affirmed
Rekic and Secretary, Department of Social Services [2015] AATA 369; 22/5/2015; Senior Member GD Friedman
Disability support pension – impairment points – whether Applicant participated in program of support – decision under review affirmed 
Rus and Secretary, Department of Social Services [2015] AATA 367; 28/5/2015; Senior Member J Handley
Whether Applicant a primary victim of overseas terrorism – Applicant was a passenger on a train approaching central London which was stopped before its intended destination on 7 July 2005 – passengers directed to alight and exit underground rail loop – intention to continue journey by bus from Tavistock Square – ordinarily would have been on a No. 30 bus – numbers of persons which boarded it caused her to take another bus – No. 30 bus was bombed when she was 142 meters away from it – declared terrorist act – Applicant was not in the place where the terrorist act occurred – decision affirmed
Taxation 
Shord and Commissioner of Taxation [2015] AATA 355; 21/5/2015; Senior Member CR Walsh
Whether taxpayer “resident of Australia” – employment overseas as oilfield diver and supervisor – income derived from foreign sources – whether taxpayer “resides” in Australia – “domicile” of taxpayer – whether taxpayer’s “permanent place of abode” outside Australia – whether “foreign source income” of taxpayer exempt – whether taxpayer entitled to foreign tax offsets – whether shortfall interest charge and shortfall penalties should wholly or partly be remitted – objection decision affirmed
Vo and Anor and Commissioner of Taxation [2015] AATA 359; 26/5/2015; Deputy President PE Hack SC
Assessment of income – income tax – default assessments – unexplained deposits –amounts treated as assessable income – burden of proof for excessive assessment – failure to show evidence of taxable income – credibility of witnesses – lack of reliability – evidence inherently unbelievable – evidence comprises broad assertion – objection decisions varied
Shortfall penalty – intentional disregard – evidence demonstrates avoidance of tax – conclusion of fraud or evasion amply justified – objection decisions varied
Veterans’ Affairs
Hansell and Repatriation Commission [2015] AATA 377; 29/5/2015; Dr R McRae, Member
Veteran’s entitlements – amended Statement of Principles – post-traumatic stress disorder (PTSD) – new Statement of Principles – decision under review affirmed
Murray and Repatriation Commission [2015] AATA 364; 27/5/2015; Dr R McRae, Member
Receipt of disability pension at 100 per cent of general rate – whether entitled to higher payment than 100 per cent of the general rate – ceased work, then backdated effective date of subsequently accepted war-caused diseases – factors preventing obtaining employed work – 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
Commissioner of Taxation v Devuba Pty Ltd | [2015] AATA 255
Newport v Australian Postal Corporation | [2015] AATA 261
Melvin v Secretary, Department of Social Services | [2015] AATA 248
Gallacher v Secretary, Department of Social Services | [2015] AATA 294
Appeals finalised
CASE NAME | AAT reference | court Reference
Coshott v Commissioner of Taxation | [2014] AATA 622 | [2015] FCAFC 71

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AAT Bulletin		 issue 22/2015 aat