Title: AAT Bulletin Issue No. 35/2015
Author: Ariana Zajmi
Company: Administrative Appeals Tribunal

AAT Bulletin
Issue No. 35/2015				31 August 2015
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 information about decisions of interest recently published in the AAT’s Migration & Refugee 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
Practice Updates
Coordinated action on non-compliance
AAT Recent Decisions
Citizenship
Compensation
National Disability Insurance Scheme
Practice and Procedure
Social Security
Taxation
Appeals
Appeals lodged
Appeals finalised
Statements of Principles
New Statements of Principles

Practice Updates
Coordinated action on non-compliance 
Paragraphs 4.57 to 4.64 of the AAT’s General Practice Direction deal with non-compliance and include a range of consequences that can apply for representatives with a history of repeat non-compliance. Coordinated action is being taken on non-compliance by representatives in the following divisions: 
•	General Division
•	Freedom of Information Division
•	National Disability Insurance Scheme Division
•	Security Division
•	Taxation & Commercial Division
•	Veterans’ Appeals Division.
Practitioners’ attention is drawn to the subsection 33(1AB) of the Administrative Appeals Tribunal Act 1975 which requires all parties and their representatives to assist the Tribunal to fulfil its statutory objectives. This requirement is in addition to the existing obligation for the decision-maker to assist the Tribunal to make its decision: subsection 33 (1AA). 
Non-compliance with AAT directions or legislative requirements is a serious matter. Non-compliance causes delays in the progress of matters, increases the costs to the parties, and creates unnecessary work for AAT members, officers and staff. Repeat non-compliance by party representatives falls well short of the obligation to assist the Tribunal and may also fail to meet professional conduct standards. Non-compliance by representatives is monitored on a national basis and instances of repeat non-compliance will be escalated for further action.
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 Divisions as well as about select decisions recently published in 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.  
Citizenship
Alothman and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 644 (28 August 2015); Senior Member JF Toohey

Whether applicant of good character – assault on wife – assault charge dismissed – breach of apprehended domestic violence order – good behaviour bond – decision under review affirmed

KKRG and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 635 (27 August 2015); Deputy President SE Frost

Eligibility – statelessness – whether the applicant is not entitled to acquire the nationality or citizenship of a foreign country – decision set aside

Rasiah and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 630 (25 August 2015); Ms S Taglieri, Member

Application by spouse of Australian Citizen; failure to meet general residency requirements; whether discretion should be exercised to treat periods of absence from Australia as being present in Australia; preferable to exercise discretion and grant Citizenship – decision set aside
Compensation
Costantine and Comcare (Compensation) [2015] AATA 645 (28 August 2015); Senior Member 
P Taylor SC

“Injury” – definition – exclusionary provision – reasonable administrative action taken in a reasonable manner in respect of employee’s employment – aggravation of pre-existing major depressive disorder– multiple causes – changes to workplace team and employee duties – failure to obtain higher duties opportunities – whether any of causes capable of falling within exclusionary provision – decision under review affirmed

Horner; Military Rehabilitation and Compensation Commission and (Compensation) [2015] AATA 618 (21 August 2015); Deputy President K Bean

Military compensation – Determination of normal earnings – Meaning of reasonable expectation of promotion – Where promotion would almost certainly have occurred but for compensable injury – Provision intended to exclude from normal earnings any promotion that had not yet actually occurred – Decision under review set aside

Kennedy and Comcare (Compensation) [2015] AATA 643 (27 August 2015); Dr J Popple, Senior Member

Commonwealth employees – Applicant requested extension of time to request reconsideration by Respondent – application for review of refusal to grant extension of time – whether application has no reasonable prospect of success – Applicant made wilful and false representations – Applicant declined to proceed at hearing – hearing proceeded in absence of Applicant – application dismissed
National Disability Insurance Scheme
McCutcheon and National Disability Insurance Agency [2015] AATA 624 (21 August 2015); Senior Member JF Toohey

Reasonable and necessary supports – spina bifida – scoliosis – whether chiropractic treatment a reasonable and necessary support – whether chiropractic treatment will be, or is likely to be, effective and beneficial having regard to current good practice – whether most appropriately funded through the NDIS – whether more appropriately funded through general health system – decision under review set aside
Practice and Procedure
The Father and Child Support Registrar (Child support second review) [2015] AATA 632 (31 July 2015); Senior Member JF Toohey

Extension of time – factors to be considered – application lodged one day late – whether acceptable explanation for the delay – merits of substantive application – Tribunal satisfied extension of time reasonable in all the circumstances – extension of time granted
Social Security
Ascic and Secretary, Department of Social Services (Social services second review) [2015] AATA 637 (27 August 2015); Dr C Kendall, Deputy President

Carer Payment – DSP – whether payments made are “compensation payments” – whether there are “special circumstances” such that all or part of payments can be treated as not having been paid – whether couple’s combined income exceeds allowable limit – decision under review affirmed  

Bluemore and Secretary, Department of Social Services (Social services second review) [2015] AATA 623 (12 August 2015); Ms R Perton, Member

Late lodgement of application for review – whether reasonable in all the circumstances to extend time – length of delay – reasons for delay – whether applicant rested on her rights – merits of applicant’s case – prospects of success – extension of time refused.

Claydon and Secretary, Department of Social Services (Social services second review) [2015] AATA 636 (27 August 2015); Senior Member AC Cotter

Disability support pension – DSP – whether 20 points or more under the Impairment Tables – whether corroborating evidence of person’s impairment – insufficient evidence – decision under review affirmed

Gowany and Secretary, Department of Social Services (Social services second review) [2015] AATA 633 (27 August 2015); Senior Member JF Toohey

Disability support pension – carer payment – portability period – whether payments should have been suspended after six weeks – discretion to extend – whether illness of family member was an event – whether applicants were unable to return to Australia by reason of event – decision under review set aside

HZQF and Secretary, Department of Social Services (Social services second review) [2015] AATA 620 (21 August 2015); Dr C Kendall, Deputy President

Disability Support Pension – Whether applicant’s impairments attract 20 points or more under the Impairment Tables – Whether applicant has a “continuing inability to work” – Decision under review affirmed

Lindsay and Secretary, Department of Social Services (Social services second review) [2015] AATA 622 (21 August 2015); Senior Member CR Walsh

Disability support pension – applicant’s impairments (bipolar affective disorder, temporal lobe epilepsy, degenerative disc disease, drug dependence and morbid obesity) did not attract at least 20 points under the impairment tables as at the relevant period – decision under review affirmed

Loftus and Secretary, Department of Social Services (Social services second review) [2015] AATA 631 (25 August 2015); Deputy President SA Forgie

AGE PENSION – qualifications – Australian resident – agreement between Australia and United Kingdom regarding social security ameliorated qualifications for age pension – claim not made before agreement terminated – applicant must meet requirement to be Australian resident for ten years – Australian resident by virtue of being holder of permanent visa – requirement cannot be ameliorated by fact that quota restrictions on grant of permanent visa meant applicant had to wait some years – decision affirmed

Madgwick and Secretary, Department of Social Services (Social services second review) [2015] AATA 626 (24 August 2015); Mr C Ermert, Member

Disability support pension – whether conditions fully diagnosed, treated and stabilised within the qualification period – decision affirmed

Nielsen and Secretary, Department of Social Services (Social services second review) [2015] AATA 619 (21 August 2015); Senior Member AC Cotter

Disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – value of medical evidence – evidence inconsistent or contradictory – decision under review affirmed

Poulton and Secretary, Department of Social Services (Social services second review) [2015] AATA 629 (25 August 2015); Dr T Nicoletti, Senior Member

Lump sum compensation – compensation affected payment – preclusion period – whether special circumstances of the case enliven discretion to treat all or part of lump sum payment as not being made – whether disposal of lump sum reasonable – no special circumstances – decision affirmed

QHBN and Secretary, Department of Social Services (Social services second review) [2015] AATA 614 (19 August 2015); Dr J Popple, Senior Member

Compensation preclusion period – newstart allowance – whether special circumstances exist to shorten preclusion period – whether gambling a special circumstance – whether Applicant’s gambling is an addiction – financial hardship – Applicant has realisable assets – decision affirmed

Siljanovski and Secretary, Department of Social Services (Social services second review) [2015] AATA 646 (28 August 2015); Mr C Ermert, Member

Disability support pension – whether conditions fully diagnosed, treated and stabilised within the qualification period – whether conditions permanent –a continuing inability to work – decision set aside

Singh and Secretary, Department of Social Services (Social services second review) [2015] AATA 638 (27 August 2015); Miss EA Shanahan, Member

Pensions, benefits and allowances – disability support pension application – illnesses not fully diagnosed, treated and stabilised – no impairment rating attracted – decision affirmed

Stojanovic and Secretary, Department of Social Services (Social services second review) [2015] AATA 625 (24 August 2015); Senior Member D Cremean

Age Pension – Portability – Suspension – Absence from Australia for 26 weeks or more – decision affirmed

Thornley and Secretary, Department of Social Services (Social services second review) [2015] AATA 621 (21 August 2015); Senior Member E Fice

Pensions, payments and allowances – Disability Support Pension – Impairment assessment – Whether applicant had 20 impairment points – Continuing ability to work – Participation in program of support – Decision under review affirmed
Taxation
Breakwell and Commissioner of Taxation (Taxation) [2015] AATA 628 (25 August 2015); Senior Member RW Dunne

Capital gains tax – maximum net value asset test – entitlement to small business CGT concessions – inclusion of loans – whether statute-barred loan – objection 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
None lodged |
Appeals finalised
CASE NAME | AAT reference | court Reference

Luck v Secretary, Department of Human Services

[2010] AATA 6

[2015] FCAFC 111
[2014] FCA 798

Luck v Chief Executive Officer of Centrelink (No 2)

[2008] AATA 718

[2015] FCAFC 112
[2008] FCA 1506

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 AAT has been advised that the Repatriation Medical Authority has made the following new Statements of Principles. They take effect from 21 September 2015.
Fracture (Reasonable Hypothesis) – No. 94 of 2015
http://www.comlaw.gov.au/Details/F2015L01340
Fracture (Balance of Probabilities) – No. 95 of 2015
http://www.comlaw.gov.au/Details/F2015L01343
Achilles tendinopathy and bursitis (Reasonable Hypothesis) – No. 96 of 2015
http://www.comlaw.gov.au/Details/F2015L01336
Achilles tendinopathy and bursitis (Balance of Probabilities) – No. 97 of 2015
http://www.comlaw.gov.au/Details/F2015L01337
Hallux valgus (Reasonable Hypothesis) – No. 98 of 2015
http://www.comlaw.gov.au/Details/F2015L01334
Hallux valgus (Balance of Probabilities) – No. 99 of 2015
http://www.comlaw.gov.au/Details/F2015L01335
Lipoma (Reasonable Hypothesis) – No. 100 of 2015
http://www.comlaw.gov.au/Details/F2015L01315
Lipoma (Balance of Probabilities) – No. 101 of 2015
http://www.comlaw.gov.au/Details/F2015L01316
Malignant melanoma of the skin (Reasonable Hypothesis) – No. 102 of 2015 
http://www.comlaw.gov.au/Details/F2015L01317
Malignant melanoma of the skin (Balance of Probabilities) – No. 103 of 2015 
http://www.comlaw.gov.au/Details/F2015L01318
Mesothelioma (Reasonable Hypothesis) – No. 104 of 2015 
http://www.comlaw.gov.au/Details/F2015L01319
Mesothelioma (Balance of Probabilities) – No. 105 of 2015
http://www.comlaw.gov.au/Details/F2015L01320
Ingrowing nail (Reasonable Hypothesis) – No. 106 of 2015
http://www.comlaw.gov.au/Details/F2015L01326
Ingrowing nail (Balance of Probabilities) – No. 107 of 2015
http://www.comlaw.gov.au/Details/F2015L01327
Meniere’s disease (Reasonable Hypothesis) – No. 108 of 2015
http://www.comlaw.gov.au/Details/F2015L01328
Meniere’s disease (Balance of Probabilities) – No. 109 of 2015
http://www.comlaw.gov.au/Details/F2015L01329
External burn (Reasonable Hypothesis) – No. 110 of 2015
http://www.comlaw.gov.au/Details/F2015L01330
External burn (Balance of Probabilities) – No. 111 of 205
http://www.comlaw.gov.au/Details/F2015L01331
Hepatitis E (Reasonable Hypothesis) – No. 112 of 2015
http://www.comlaw.gov.au/Details/F2015L01332
Hepatitis E (Balance of Probabilities) – No. 113 of 2015
http://www.comlaw.gov.au/Details/F2015L01333

© Commonwealth of Australia 2015

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^AAT ^BULLETIN	^ISSUE ^35/2015		^1