Title: AAT Bulletin Issue No. 35/2017 (RTF version)
Author: Wilson Yu Lin Huang
Last saved by: Harvea
Company: Administrative Appeals Tribunal

AAT Bulletin
Issue No. 35/2017	  28 August 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
Compensation
Education and Research
Migration
Refugee
Practice and Procedure
Social Security
Taxation
Appeals
Appeals lodged
Appeals finalised
Statements of Principles
New Statements of Principles
Statements of Principles to be revoked
Amendments to Statements of Principles

AAT Recent Decisions
The following decisions were recently delivered by the AAT in the General, FOI, NDIS, Security, Taxation & Commercial and Veterans’ Appeals Divisions. 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. If the decision is to be summarised, this will be noted. Click on the links for direct access to the full text of the decision.  
Compensation
Dalgleish and Comcare (Compensation) [2017] AATA 1325 (15 August 2017); Senior Member E Fice
1986 workplace accident – injured leg – cushioned shoes – whether a compensable medical expense – application of the Compensation (Commonwealth Government Employees) Act 1971 – transition provision of the Safety, Rehabilitation and Compensation Act 1988
Favas and Comcare (Compensation) [2017] AATA 1317 (17 August 2017); Ms R Perton, Member
Employment by Department of Defence – major depressive disorder – alleged bullying by supervisor – whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether applicant entitled to compensation for incapacity – decision affirmed  
O’Day and Comcare (Compensation) [2017] AATA 1328 (31 July 2017); Senior Member A Nikolic AM CSC
Whether Comcare liable to pay compensation for osteopathic treatment – decisions under review affirmed
Reeday and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1320 (18 August 2017); Dr C Kendall, Deputy President
Military Compensation and Rehabilitation Act – defence service – whether applicant suffers or suffered from the claimed conditions of lumbar spondylosis and thoracic spondylosis – date of clinical onset – Statement of Principles No. 63 and No. 65 – whether one of the factors contained in the applicable Statement of Principles exists – whether applicant has established a sufficient connection between the injury and his defence service – decision under review affirmed
Taylor and Comcare (Compensation) [2017] AATA 1327 (22 August 2017); Senior Member JF Toohey
Bullying and harassment – adjustment reaction with anxious mood – depression – liability accepted – subsequently disputed – whether condition outside the boundaries of normal mental functioning and behaviour – whether employment contributed to a significant degree – whether effects of injury ceased – whether applicant made wilful and false representation – Tribunal satisfied that applicant’s employment contributed to a significant degree to her condition – decision that effects had ceased affirmed – not an injury by reason of wilful and false representation
Education and Research
Khan and Secretary, Department of Education and Training [2017] AATA 1333 (22 August 2017); Miss EA Shanahan, Member
HIGHER EDUCATION – higher education contribution scheme – withdrawal from units of study after census date – application for remission of debt arising – special circumstances – decision affirmed
Migration
Bui and Minister for Immigration and Border Protection (Migration) [2017] AATA 1330 (23 August 2017); Senior Member E Fice
Application for revocation of mandatory cancellation of visa – character grounds – substantial criminal record – applicant convicted of cultivating narcotic plant in a quantity not less than a commercial quantity – applicant convicted of possessing drug of dependence – total term of imprisonment of two years and nine months – applicant’s offending of a serious nature but on lower end of seriousness scale – low risk of harm to Australian community – revocation of mandatory cancellation in best interests of applicant’s grandchildren – Australian community would expect applicant be given a second chance – applicant has strong ties to Australia – decision under review set aside and substituted with decision revoking mandatory cancellation
Diep and Minister for Immigration and Border Protection (Migration) [2017] AATA 1319 (21 August 2017); Dr L Bygrave, Member
Migration Act 1958 – mandatory visa cancellation – character test –serious criminal offence –  protection of the Australian community – best interests of minor grandchildren – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if removed – decision affirmed
Kohli and Minister for Immigration and Border Protection (Migration) [2017] 1326 AATA (22 August 2017); Senior Member A Poljak
Mandatory cancellation – skilled visa - character test – substantial criminal record – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – decision affirmed
Ballard (Migration) [2017] AATA 1336 (2 August 2017); T Flood, Member
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) (Class FA) – Sponsored Family stream – Genuine temporary entrant – Marriage to review applicant – Review applicant’s frequent travel to Thailand – Applicant’s business and family responsibilities – Incentives to return – Previous compliant visits – Decision under review remitted
Rakuro (Migration) [2017] AATA 1298 (3 August 2017); N McGowan, Member
Migration – Child (Residence) (Class BT) visa – Subclass 802 – Previous tribunal remittal – Dependent child under 25 – Sponsor not resided overseas for more than 12 months – Lawfully acquired full and permanent parental rights – Study requirements – Decision under review remitted
Mariana (Migration) [2017] AATA 1345 (3 August 2017); W Shum, Member
Migration – Skilled (Residence) (Class VB) visa – Subclass 886 – Required English language proficiency – Applicant did not achieve minimum score in multiple attempts – Decision under review affirmed
Matthews (Migration) [2017] AATA 1300 (4 August 2017); C Kannis, Member
Migration – Subclass TY444 visa – Invalid application – No refusal decision for second review application – No jurisdiction
Guragain (Migration) [2017] AATA 1314 (17 August 2017); Senior Member K Raif
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Criminal offences – Guilty plea – Risk to safety or good order of Australian community – No international obligations breached – Decision under review affirmed
Refugee
1612187 (Refugee) [2017] AATA 1310 (1 August 2017); P Windsor, Member
Refugee – Protection Visa – Malaysia – Social group – Homosexuals – Muslim lesbians – Pengkids – Forced marriage – Physical harassment – No State protection – Decision under review remitted
1608491 (Refugee) [2017] AATA 1347 (1 August 2017); P Vlahos, Member
Refugee – Protection visa – China – Unlawful citizen – Tax evasion and money laundering – Credibility issues – Decision under review affirmed
1713235 (Refugee) [2017] AATA 1194 (27 July 2017); P Vlahos, Member
Refugee – Protection visa – Malaysia – Non-reviewable decision – Repeat application – First application has already been reviewed – No jurisdiction
1514524 (Refugee) [2017] AATA 1190 (25 July 2017); J Marquard, Member
Refugee – Protection visa – Cameroon – Social group – Homosexual men – Past social and workplace discrimination – Warrant for arrest – Homophobia prevalent – Criminal penalties – Relocation not possible – No state protection – Decision under review remitted
1509246 (Refugee) [2017] AATA 1267 (24 July 2017); Senior Member S Roushan
Refugee – Protection Visa – Egypt – Religion – Koranism – Quranism – Claimed detention and assault – Inconsistent evidence – Credibility – Decision under review affirmed
Practice and Procedure
Horizons (Asia) Pty Ltd and Registrar of Trade Marks [2017] 1332 AATA (21 August 2017); Senior Member A Poljak
Jurisdiction – whether tribunal has jurisdiction to review – opposition to registration of trade mark – request to be heard on extension of time application – extension of time already determined – no jurisdiction – application dismissed
Hyde and Secretary, Department of Social Services (Social services second review) [2017] 1329 AATA (23 August 2017); Senior Member T Tavoularis
INTERLOCUTORY DECISION – Extension of time application – Application for Extension of Time considered – where Application for Review filed out of time – where inadequate reason for delay – where unconvincing prospects of success - extension of time refused
Social Security
Ejueyitsi and Secretary, Department of Social Services (Social services second review) [2017] AATA 1321 (18 August 2017); Mr DJ Morris, Member
Austudy allowance – overpayment – where Applicant failed to report change of circumstances – whether debt should be waived – no special circumstances – no financial hardship – decision under review affirmed
Marston and Secretary, Department of Social Services (Social services second review) [2017] AATA 1322 (18 August 2017); Dr I Alexander, Member
Disability support pension – whether impairments are physical, intellectual or psychiatric – whether impairments amount to 20 points or more – continuing inability to work – Table 2 Upper Limb Function – Table 4 Spinal Function – Table 5 Mental Health Function – Table 10 Digestive and Reproductive Function – Table 14 – Functions of the Skin – decision affirmed
Robinson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1323 (21 August 2017); Senior Member PE Nolan
Disability support pension – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – Fibromyalgia – Spondylosis – Cerebrovascular disease – decision under review is affirmed
Ryan and Secretary, Department of Social Services (Social services second review) [2017] AATA 1324 (22 August 2017); Dr I Alexander, Member
Disability support pension – applicant has physical impairments – chronic lower back pain – Meniere’s disease – heart condition - psoriasis – hiatus hernia – irritable bowel syndrome – diverticulitis – the applicant’s impairments do not total 20 points or more under the Impairment Tables  – decision under review affirmed
Trimboli and Secretary, Department of Social Services (Social services second review) [2017] AATA 1331 (18 August 2017); Ms A Burke, Member
Whether applicant entitled to family tax benefit – late lodgement of tax return – is debt raised and recoverable – should debt be waived or written off, in part or full – whether severe financial hardship or special circumstances making desirable to waive debt applicable – reviewable decision set aside and substituted
Taxation
Arnold and Commissioner of Taxation (Taxation) [2017] AATA 1318 (18 August 2017); The Hon. Justice Perram, Deputy President
Appeal from objection decisions of Commissioner – deductions – charitable donations to deductible gift recipients – HIV/AIDS medicines supplied to charities located in Africa – consideration of market value of goods – consideration of amount paid for goods – construction of ‘paid’ in s 30-15 of Income Tax Assessment Act 1997 (Cth) – whether title to goods transferred to charities within relevant income years – whether supply agreements void for illegality – whether objection decisions upheld – whether administrative shortfall penalties upheld
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
Davis v Minister for Immigration and Border Protection | [2017] AATA 1106
Appeals finalised
CASE NAME | AAT reference | court Reference
Commissioner of Taxation v Primary Health Care Limited | [2017] AATA 393 | [2017] FCAFC 131
Fitzgibbon v Turnbull | [2017] AATA 502 | [2017] FCA 968

National Disability Insurance Agency v McGarrigle

[2016] AATA 498

[2017] FCAFC 132
[2017] FCA 308

Nigam v Minister for Immigration and Border Protection and Administrative Appeals Tribunal

[2016] AATA 613

[2017] FCAFC 127
[2017] FCA 106

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 commence on 18 September 2017.
Alcohol use disorder (Reasonable Hypothesis) – No. 48 of 2017
https://www.legislation.gov.au/Details/F2017L01045
Alcohol use disorder (Balance of Probabilities) – No. 49 of 2017
https://www.legislation.gov.au/Details/F2017L01046
Benign paroxysmal positional vertigo (Reasonable Hypothesis) – No. 56 of 2017
https://www.legislation.gov.au/Details/F2017L01050	
Benign paroxysmal positional vertigo (Balance of Probabilities) – No. 57 of 2017
https://www.legislation.gov.au/Details/F2017L01051
Influenza (Reasonable Hypothesis) – No. 44 of 2017
https://www.legislation.gov.au/Details/F2017L01054
Influenza (Balance of Probabilities) – No. 45 of 2017
https://www.legislation.gov.au/Details/F2017L01056
Malaria (Reasonable Hypothesis) – No. 46 of 2017
https://www.legislation.gov.au/Details/F2017L01049
Malaria (Balance of Probabilities) – No. 47 of 2017
https://www.legislation.gov.au/Details/F2017L01061
Popliteal entrapment syndrome (Reasonable Hypothesis) – No. 54 of 2017
https://www.legislation.gov.au/Details/F2017L01053
Popliteal entrapment syndrome (Balance of Probabilities) – No. 55 of 2017
https://www.legislation.gov.au/Details/F2017L01058

Rheumatoid arthritis (Reasonable Hypothesis) – No. 50 of 2017
https://www.legislation.gov.au/Details/F2017L01055
Rheumatoid arthritis (Balance of Probabilities) – No. 51 of 2017
https://www.legislation.gov.au/Details/F2017L01057
Tooth wear (Reasonable Hypothesis) – No. 52 of 2017
https://www.legislation.gov.au/Details/F2017L01059
Tooth wear (Balance of Probabilities) – No. 53 of 2017
https://www.legislation.gov.au/Details/F2017L01062

Statements of Principles to be revoked	
The AAT has been advised that the following Statements of Principles determined by the Repatriation Medical Authority will be revoked on 18 September 2017:
Alcohol use disorder – No. 1 of 2009
https://www.legislation.gov.au/Details/F2014C00398
Alcohol use disorder – No. 2 of 2009
https://www.legislation.gov.au/Details/F2014C00404
Influenza – No. 58 of 2009
https://www.legislation.gov.au/Details/F2009L03220	
Influenza – No. 59 of 2009
https://www.legislation.gov.au/Details/F2009L03221
Malaria – No. 60 of 2009
https://www.legislation.gov.au/Details/F2009L03222
Malaria – No. 61 of 2009
https://www.legislation.gov.au/Details/F2009L03224
Rheumatoid arthritis – No. 68 of 2008
https://www.legislation.gov.au/Details/F2008L04133
Rheumatoid arthritis – No. 69 of 2008
https://www.legislation.gov.au/Details/F2008L04134
Amendments to Statements of Principles
The AAT has been advised that the Repatriation Medical Authority has made the following determination which amends 124 Statements of Principles covering 65 conditions. The amendments take effect from 18 September 2017.
Veterans' Entitlements (Statements of Principles—Cumulative Equivalent Dose) Amendment Determination 2017 – No. 58 of 2017
https://www.legislation.gov.au/Details/F2017L01067	

© Commonwealth of Australia 2016

With the exception of the Commonwealth Coat of Arms and any third party material, this work is licensed under a Creative Commons Attribution 3.0 Australia Licence.  Content from this publication should be attributed as: Administrative Appeals Tribunal, AAT Bulletin.
To the extent that copyright subsists in third party material, it remains with the original owner and permission may be required to reuse the material.
The terms under which the Coat of Arms can be used are detailed on the following website: http://www.itsanhonour.gov.au/coat-arms/. 
Enquiries regarding the licence are welcome at aatweb@aat.gov.au. 
This licence is limited to the AAT Bulletin and does not extend to the full text of AAT decisions.  Separate licence terms for AAT decisions can be found on AustLII.

^AAT ^BULLETIN	^ISSUE ^35/2017