Title: AAT Bulletin 26/2013, 1 July 2013
Author: Adele Veness
Last saved by: Novello, Mary
Company: ZOO Communications

AAT Bulletin
Issue No. 14/2013	1 July 2013

AAT Bulletin
Issue No. 26/2013	1 JULY 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.  
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
Statements of Principles
New Statements of Principles
AAT Recent Decisions
Child Support
Civil Aviation
Compensation
Immigration and Citizenship
National Security
Practice and Procedure
Social Security
Superannuation
Taxation
Veterans' Affairs
Appeals Finalised
Appeals lodged
Appeals finalised

Statements of Principles
This section of the Bulletin provides information on recent developments in relation to Statements of Principles made by the Repatriation Medical Authority for the purposes of the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. 
New Statements of Principles
The Tribunal has been advised that the Repatriation Medical Authority has made the following new Statements of Principles.  They take effect from 3 July 2013.
Colorectal adenoma – No. 35 of 2013
Colorectal adenoma – No. 36 of 2013
Malignant neoplasm of the colorectum – No. 37 of 2013
Malignant neoplasm of the colorectum – No. 38 of 2013 
Familial adenomatous polyposis – No. 39 of 2013
Familial adenomatous polyposis – No. 40 of 2013
Sleep apnoea – No. 41 of 2013
Sleep apnoea – No. 42 of 2013
Erectile dysfunction – No. 43 of 2013
Erectile dysfunction – No. 44 of 2013
Gingivitis – No. 45 of 2013
Gingivitis – No. 46 of 2013
Periodontitis – No. 47 of 2013
Periodontitis – No. 48 of 2013
Periodontal abscess – No. 49 of 2013
Periodontal abscess – No. 50 of 2013

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.
Child Support
Confidential and Child Support Registrar & Anor [2013] AATA 426; Senior Member N Bell
Percentage of care – Court orders for equal shared parental responsibility – Child a weekly boarder at his school – Payment of school fees – Whether necessary or appropriate to attribute specific periods spent at boarding school to either parent – How care should be apportioned between parents for periods spent at boarding school – Decision under review varied
Civil Aviation
Hansen and Civil Aviation Safety Authority [2013] AATA 437; 27/6/2013; Senior Member JL Redfern
Helicopter pilot – Fatal accident – Duty to safely navigate or operate aircraft – Discretion – Cancellation of private pilot licence – Whether applicant a fit and proper person – Decision under review affirmed
Sullivan and Civil Aviation Safety Authority [2013] AATA 425; 24/6/2013; Deputy President PE Hack SC
Cancellation of commercial pilot (helicopter) licence – Contravention of operations manual – Overloaded helicopter – Failed in duty with respect to matters affecting safe navigation and operation of aircraft – Not fit and proper person – Decision under review affirmed
Compensation
Smith and Comcare [2013] AATA 427; 25/6/2013; Senior Member BJ McCabe
Commonwealth employee – Accepted workplace injury – Liability for ongoing medical costs – Liability for permanent impairment – Workplace injury resolved – Decision under review affirmed 
Immigration and Citizenship
Vito and Minister for Immigration and Citizenship [2013] AATA 422; 24/6/2013; The Hon B Tamberlin QC, Deputy President
Visa cancellation – Character test under s 501(2) Migration Act 1958 – Ministerial Direction 55 – Decision under review affirmed
National Security
TCXG and Director General of Security & Anor [2013] AATA 284; 10/5/2013; Justice D Kerr, President; Deputy President RP Handley and Senior Member JF Toohey
Adverse security assessment – Refusal of application for Australian passport – Likely to engage in conduct which might prejudice security – Correctness, justification for any opinion or information contained in assessment – Whether evidence, information, material relied on sufficiently probative to justify assessment – Decision under review affirmed
Practice and Procedure
Matthews and Commissioner of Taxation [2013] AATA 435; 26/6/2013; Deputy President FJ Alpins 
Taxation – Practice and procedure – Jurisdiction of Tribunal – Pt IVC of Taxation Administration Act 1953 – No reviewable decision identified by applicant
Weldon and Repatriation Commission [2013] AATA 417; 21/6/2013; Senior Member N Bell
Application for special rate – Correct date of application – Whether the provisions of section 24 of Veterans Entitlement Act can be applied for increase to the special rate of pension – Direction for review to be determined for future progress
Social Security
Arifin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 429; 4/6/2013; Senior Member JF Toohey
Disability support pension – Date from which applicant entitled to payment – Decision under review set aside – Decision substituted that applicant entitled to payment from 17 September 2009 – Matter remitted to the respondent for assessment of arrears
Charlish and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 434; 26/6/2013; Mr P Wulf, Member
Pensions, benefits and allowances – Rent assistance – Retirement village residents – Whether “ingoing sum” paid by applicants to owner of retirement village prior to occupation under a Licence Agreement forms an ownership of property – Whether “yearly sum” is rent or should be treated as rent for purposes of the Act – 12-month periodic licence – Decisions under review set aside and substituted
Green and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 438; 27/6/2013; Dr M Denovan, Member
Pensions, benefits and allowances – Age pension – Residency – 10 years qualifying Australian residence – Qualifying residence exemption – Not qualified – Decision under review affirmed
Nilsson and Secretary, Department of Education, Employment and Workplace Relations [2013] AATA 441; 27/6/2013; Senior Member AK Britton
Newstart Allowance – Reconnection penalty – Whether the applicant had a reasonable excuse for not complying with the requirements of an Employment Pathway Plan – Decision under review affirmed
Superannuation
Roberts-Billett and Commonwealth Superannuation Corporation [2013] AATA 440; 27/6/2013; Ms R Perton, Member
Spouse pension – Widow – Applicant remarried husband shortly before death – Applicant not living with husband – Whether applicant dependent on deceased – Whether divorce due to illness – Whether apart due to special circumstances – Decision under review affirmed
Taxation
Clayton and Commissioner of Taxation [2013] AATA 428; 25/6/2013; Senior Member BJ McCabe
Carrying on an enterprise – Input tax credits – Creditable acquisitions incurred in carrying on an enterprise – Cancellation of GST registration – Delay in generating income – Objection decisions under review affirmed
Lambert and Commissioner of Taxation [2013] AATA 442; 27/6/2013; Senior Member E Fice
Income Tax – Discretionary Trust – Deed of variation – Claimed deduction for interest and expenditure on rental properties – Rental properties owned by the Trust – Money borrowed by the Trust – Onus of proof – Penalties
Naidoo and Commissioner of Taxation [2013] AATA 443; 28/6/2013; Senior Member G Lazanas
Goods and services tax – GST registration – Cancellation of registration – Whether carrying on an enterprise – Date of effect of cancellation of GST registration – Entitlement to input tax credits – What is the net amount for a period in circumstances where the taxpayer is held not to have been carrying on an enterprise – Whether applicant is entitled to a refund of GST paid – Application of s 105-65 of Schedule 1 of the Taxation Administration Act – Whether the Tribunal has jurisdiction to review a decision made pursuant to s 105-65 of Schedule 1 of the Taxation Administration Act – Administrative penalty – Calculation of penalty based on tax shortfall – Whether conduct involved recklessness – Whether applicant is entitled to remission of penalty – Decision to cancel registration is affirmed and decisions in respect to assessment of GST and penalty are set aside and substituted
Ozone Manufacturing Pty Ltd and Commissioner of Taxation [2013] AATA 420; 21/6/2013; Senior Member RW Dunne
Income tax – Research and development tax offset – Research and development expenditure – Research and development activities – Whether research and development expenditure was incurred directly in respect of research and development activities carried out by the applicant during the 2001/2002 tax year – Keeping of records – Substantiation – Whether applicant’s records establish nexus between R&D expenditure and R&D activities – Burden of proof – Whether taxation decision concerned should not have been made or should have been made differently – Objection decision under review affirmed
Veterans' Affairs
Derry and Repatriation Commission [2013] AATA 431; 26/6/2013; Dr K Breen, Member
Claim for defence caused post-surgical deformity – Injury or disease – Physical ailment or defect – Insufficient material to make a decision – Remittal to respondent pursuant to s 42D of the Administrative Appeals Act 1975
Ellis and Repatriation Commission [2013] AATA 433; 26/6/2013; Deputy President JW Constance
Widow’s pension – Whether death was war-caused –– Diabetes mellitus – Malignant neoplasm of the liver – Whether material raises an hypothesis connecting the death with the circumstances of operational service – Decision under review affirmed
Kaluza and Repatriation Commission [2013] AATA 424; Senior Member N Bell and Dr SH Toh, Member
Pension – Period of operational service – Whether applicant suffers from conditions – Posttraumatic stress disorder – Generalised anxiety disorder – Anxiety disorder – Alcohol dependence – Alcohol abuse – Hypertension – Whether conditions war-caused – Decision under review varied
Richmond and Repatriation Commission [2013] AATA 421; 20/6/2013; Ms R Perton, Member
Pension at special rate – Whether war caused conditions alone cause of inability to work – Reason why applicant stopped working – Decision under review affirmed
Summers and Repatriation Commission [2013] AATA 439; 27/6/2013; Senior Member GD Friedman
Veterans’ entitlements – Post-traumatic stress disorder – Traumatic events – Whether condition diagnosed and war-caused – Alcohol dependence – Whether war-caused – Whether intermediate or special rate of pension applies – The Tribunal sets aside the decisions under review and substitutes a decision that post-traumatic stress disorder suffered by Mr Summers is war-caused – In all other respects the Tribunal affirms the decisions under review

Appeals Finalised
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 Cancer and Bowel Research Association Inc. as Trustee for the Cancer and Bowel Research Trust | [2013] AATA 336
Commissioner of Taxation v AAT & Anor | [2013] AATA 336

Appeals finalised
CASE NAME | AAT reference | court Reference
Heiner v Minister for Immigration and Citizenship & AAT | [2012] AATA 933 | [2013] FCA 617
Salahuddin v Minister for Immigration and Citizenship & AAT | [2013] AATA 1 | [2013] FCA 588
Demillo v Minister for Immigration and Citizenship & AAT | [2012] AATA 805 | [2013] FCA 629

Smith v Comcare

[2011] AATA 662

[2013] FCAFC 65
[2012] FCA 502

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AAT Bulletin		issue 26/2013 aat

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AAT Bulletin		issue 26/2013 aat