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AAT Bulletin

Issue No. 28/2014	21 JULY 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
Taxation
Tax Practitioners’ Board
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.
Compensation
Atkins and Comcare [2014] AATA 473; 14/7/2014; Senior Member RM Creyke
Osteoarthritis in right and left thumbs – whether the applicant suffered from a compensable condition – whether the injury was aggravated by the employment – whether the applicant continued to suffer the compensable condition – decisions under review affirmed
Egan and Telstra Corporation Limited [2014] AATA 472; 14/7/2014; Senior Member RG Kenny and Dr GJ Maynard, Brigadier (Rtd), Member
Claim for permanent impairment – liability accepted for 1993 injury of lower back strain L5/S1 – further injury to spine in 2011 an aggravation of underlying degenerative disease – condition unrelated to compensable condition – application of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)(“the Guide”) – whole person impairment rating under Table 9.17 of the Guide – threshold requirement of 10% for payment of compensation for permanent impairment not satisfied – decision under review affirmed
Gilbert and Australian Postal Corporation [2014] AATA 483; 17/7/2014; Deputy President K Bean and Professor P Reilly AO, Member
Entitlement to incapacity payments under Safety, Rehabilitation and Compensation Act 1988, s 19 – whether applicant able to work normal weekly hours – further modified duties not offered to applicant – Applicant’s ability to earn equivalent to what he actually earned in relevant period – decision under review set aside
Parry and Military Rehabilitation and Compensation Commission [2014] AATA 493; 18/7/2014; Senior Member BJ McCabe and Dr GJ Maynard, Brigadier (Rtd), Member
Application for compensation in respect of cognitive impairment – Applicant already in receipt of pension for PTSD and chronic depression – medical expert evidence suggests cognitive impairment not a separate medical condition – cognitive impairment a consequence of accepted psychiatric conditions already compensated for under separate Act – reviewable decision affirmed
Ross and Comcare [2014] AATA 476; 15/7/2014; Senior Member RG Kenny
Acceptance of liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for right knee condition – reviewable decision to revoke determinations relating to incapacity payments from 1 July 2007 until 8 July 2012 (“the relevant period”) – further reviewable decision that incapacity entitlement in the relevant period was nil – assessment of ability to earn in suitable employment – decisions set aside and substituted – matters remitted to Comcare for recalculation
Thompson and Comcare [2014] AATA 486; 17/7/2014; Deputy President SD Hotop
Commonwealth employees – applicant suffered compensable back injury – applicant subsequently suffered mental ailment – mental ailment contributed to, to significant degree, by compensable back injury – mental ailment a disease – mental ailment a compensable injury – applicant incapacitated for work as result of compensable back injury – decisions under review set aside
Immigration and Citizenship
Slewa and Minister for Immigration and Border Protection [2014] AATA 484; 17/7/2014; Senior Member JL Redfern
Application for citizenship by conferral – application refused – whether applicant is of good character – proceedings for an offence against an Australian law pending – decision affirmed
Practice and Procedure
Lauricella and Secretary, Department of Social Services [2014] AATA 471; 11/7/2014; Deputy President RP Handley
Extension of time to lodge application for review – application refused
Secretary, Department of the Prime Minister and Cabinet and Treasurer of the Commonwealth of Australia and Combined Pensioners and Superannuants Association of New South Wales Incorporated (Party Joined) [2014] AATA 485; 17/7/2014; Deputy President SA Forgie
FREEDOM OF INFORMATION – direction of differently constituted Tribunal determining parties to the proceeding – whether Tribunal functus officio – whether any basis on which earlier Tribunal made a jurisdictional error so that it had not made a decision at all – Tribunal functus officio
FREEDOM OF INFORMATION – standing – considered if Tribunal not functus officio – interests “affected by” – applicant is a person whose interests are affected by the decision under review
FREEDOM OF INFORMATION – parties to the proceeding – identification of parties – difficulties arising from description of agency as “respondent” when its IC reviewable decision not under review and the Information Commissioner is not a party to the review of the IC decision
FREEDOM OF INFORMATION – legal representation – applicant and respondent having same representative – matter for parties and legal representatives – identification of role of each – interests align – issue of potential conflict should be revisited from time to time
Social Security
Cope and Secretary, Department of Social Services [2014] AATA 451; 4/7/2014; Senior Member RM Creyke
Pension bonus payment – consecutive qualifying bonus periods – whether applicant satisfied work test requirements – whether applicant applied for pension bonus within time – decision under review set aside
Danaher; Secretary, Department of Social Services and [2014] AATA 448; 4/7/2014; Deputy President PE Hack SC
Claims – disability support pension – whether injuries permanent – whether Table 1 or Table 4 to be used for spinal injuries – whether injuries qualify for 20 points – decision set aside
Downes and Secretary, Department of Social Services [2014] AATA 492; 17/7/2014; Senior Member BJ McCabe
FAMILY ASSISTANCE AND SOCIAL SECURITY – Dispute over rate of age pension – Applicant contends she made gift of $75,000 to son in 1999 – respondent contends there was no delivery of gift until 2011 – finding of fact that disposal of financial asset occurred in 1999 – reviewable decision set aside and remitted to respondent
Fisher and Secretary, Department of Social Services [2014] AATA 488; 17/7/2014; Senior Member BJ McCabe
DISABILITY SUPPORT PENSION – Unsuccessful application for DSP – failure to satisfy “medical criteria” – physical and psychiatric conditions not fully diagnosed, treated and stabilised – not possible to allocate impairment points – applicant made earlier, successful application for another social security payment – not reasonable to exercise discretion to deem earlier application as application for DSP – decision under review affirmed
Garside and Secretary, Department of Social Services [2014] AATA 489; 17/7/2014; Senior Member BJ McCabe
FAMILY ASSISTANCE AND SOCIAL SECURITY – Applications for Carer Allowance and Carer Payment – medical evidence confirms applicant’s entitlement – dispute over date of entitlement – claim for Carer Allowance effective from day on which applicant asked for review of rejection decision – claim for Carer Allowance effective from day on which applicant lodged second claim form that was ultimately accepted – decision under review affirmed
Haryanto and Secretary, Department of Social Services [2014] AATA 481; 14/7/2014; Mr S Webb, Member
Claim for Newstart Allowance – compensation for work injury – payment of medical treatment and other expenses, periodic payments and lump sum compensation by previous employer’s insurer prior to settlement – transfer of liability – lump sum settlement of claim – reimbursement of previous employer’s insurer – periodic payments excluded from calculation of lump sum – compensation part of lump sum – calculation of preclusion period – no special circumstances – decision affirmed
Polydorou and Secretary, Department of Social Services [2014] AATA 478; 10/6/2014; Mr C Ermert, Member
Disability Support Pension – absence from Australia – portability – cancellation – claim for review of cancellation – favourable determination – more than 13 weeks – date of effect – decision affirmed
Stien and Secretary, Department of Social Services [2014] AATA 477; 4/7/2014; Senior Member RW Dunne
Disability support pension – evidence obtained by respondent that applicant received excessive income during relevant period – decision of Social Security Appeals Tribunal affirming respondent’s decision to suspend and then cancel payment of disability support pension – applicant denies deriving excessive income
PRACTICE AND PROCEDURE – application for stay – hardship, likelihood of recovery by respondent, prospects of success – applicant’s history relating to disability support pension unclear – necessary for  substantive question to be decided by Tribunal – application for stay refused.
Sukkar and Secretary, Department of Social Services [2014] AATA 480; 16/7/2014; Senior Member N Isenberg
Disability support pension – applicant seeks indefinite portability of disability support pension – whether applicant has a severe impairment – decision under review affirmed
Taxation
Dowling and Commissioner of Taxation [2014] AATA 474; 14/7/2014; Deputy President IR Molloy
Superannuation – excess non-concessional contributions tax – whether special circumstances – whether discretion under Division 292 of the Income Tax Assessment Act 1997 (Cth) can be exercised – decision under review affirmed
Tax Practitioners’ Board
Pathiranage and Tax Practitioners’ Board [2014] AATA 490; 14/7/2014; Senior Member J Handley
Registered tax agent – renewal of registration – whether applicant has completed continuing professional education that meets the Board's requirements – course in Australian taxation law not completed – applicant seeking extension to complete course requirements – power of the Tribunal to extend time – decision to refuse renewal of registration affirmed
Veterans' Affairs
Elton and Repatriation Commission [2014] AATA 475; 15/7/2014; Senior Member GD Friedman
Veterans’ entitlements – alcohol use disorder – stressful events – whether condition war–caused – cannabis use disorder – whether condition diagnosed and war-caused – decision under review set aside
QSWZ and Repatriation Commission [2014] AATA 482; 16/7/2014; Miss EA Shanahan, Member
Disability Pension – eligible service – cardiac arrhythmias variously diagnosed – prolonged strenuous high level endurance physical activity – eventual diagnosis paroxysmal atrial fibrillation – satisfaction of Statement of Principles – decision set aside
Tearle and Repatriation Commission [2014] AATA 491; 17/7/2014; Senior Member AK Britton
Entitlement to pension – shoulder osteoarthritis and/or hand osteoarthritis – whether disease was war-caused – Deledio test – pension at the intermediate rate – whether there is material that points to a hypothesis – beneficial legislation – decision 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
Ekinci v Civil Aviation Safety Authority | [2014] AATA 424
Mulligan v National Disability Insurance Agency | [2014] AATA 374
Ogden v Commissioner of Taxation | [2014] AATA 385

Appeals finalised
CASE NAME | AAT reference | court Reference

Pangilinan v Secretary, Department of Immigration and Border Protection

[2013] AATA 574

[2014] FCA 740
[2014] FCCA 294

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AAT Bulletin		 issue 28/2014 aat