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AAT Bulletin

Issue No. 40/2014	13 october 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
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.
Compensation
Grant and Comcare [2014] AATA 726; 7/10/2014; Senior Member N Isenberg
Accepted condition – whether condition contributed to by employment – Applicant employed in Centrelink call centre – contemporaneous medical evidence attributes condition to alternate employment – condition not contributed to in a significant degree by applicant's employment – decision under review affirmed
Immigration and Citizenship
Yang and Minister for Immigration and Border Protection [2014] AATA 731; 9/10/2014; Senior Member J Toohey
Criminal record – whether applicant of good character – traffic offences – driving while under suspension – driving while disqualified – applicant still disqualified from driving at time of the Tribunal proceedings – Tribunal not satisfied applicant of good character for the purposes of conferral of citizenship – decision under review affirmed
Practice and Procedure
Nijaat and Minister for Immigration and Border Protection [2014] AATA 717; 24/9/2014; Senior Member AK Britton
Application for extension of time – application for review lodged outside prescribed period – factors relevant to an extension of time – prospects of success remote – application for extension of time refused
Perla and Secretary, Department of Social Services [2014] AATA 724; 24/9/2014; Senior Member BJ McCabe
APPLICATION FOR DISMISSAL – Application frivolous or vexatious – Applicant’s entitlement to Austudy paid at the higher rate – failure to meet statutory criteria – no jurisdiction to decide claims of misleading or deceptive conduct – natural justice – role of the Tribunal conducting merits review – application dismissed
Social Security
Cloros and Secretary, Department of Social Services [2014] AATA 716; 2/10/2014; Senior Member NA Manetta
Overpayment of Newstart allowance – recovery – alleged administrative error giving rise to overpayment – applicant’s evidence of bona fide disclosure of earnings not accepted – no administrative error found – decision affirmed
Social Security
Javed and Secretary, Department of Social Services [2014] AATA 732; 9/10/2014; Senior Member JF Toohey
Disability support pension – anxiety and depression – osteoarthritis in both knees – gastric reflux – morbid obesity – hyperlipidaemia – spinal stenosis – whether conditions fully diagnosed treated and stabilised – impairment ratings – program of support – decision under review affirmed
Misrachi and Secretary, Department of Social Services [2014] AATA 727; 7/10/2014; Senior Member AF Cunningham
Parental leave pay – work test – adopted child – no referable provision in Act to accommodate applicant's circumstances – decision under review affirmed
Rainsford and Secretary, Department of Social Services [2014] AATA 735; 10/10/2014; Mr M Hyman, Member
FAMILY ASSISTANCE – family tax benefit – child born overseas – determination of rate of benefit - where recipient spent an extended period overseas – operation of discretion to extend portability – whether recipient involved in custody proceedings –  whether proceedings were in Fiji - whether unable to travel – whether proceedings occurred or began in the initial period of absence – decision set aside and substituted
Vaneski and Secretary, Department of Social Services [2014] AATA 728; 7/10/2014; Brigadier C Ermert (Rtd), Member
Disability Support Pension – unlimited portability – severe impairment – inability to work independently of program of support – decision set aside and substituted
Taxation
Scanlon and Commissioner of Taxation [2014] AATA 725; 3/10/2014; Senior Member E Fice
Assessable income – Capital Gains Tax – eligible termination payments – disposal of a CGT asset – ETP Liability – maximum net asset value test – small business CGT affiliate – assets used solely for personal use and enjoyment – capital proceeds from a CGT event – penalties – failure to take reasonable care – reasonably arguable position – sale of shares – company resolution – contract – goodwill – loans – decision under review affirmed
Veterans' Affairs
Dawes and Repatriation Commission [2014] AATA 730; 9/10/2014; Brigadier C Ermert (Rtd), Member
Veteran not yet turned 65 – veteran is totally and permanently incapacitated – incapacity from war-caused injuries alone – prevented from continuing to undertake remunerative work – suffering a loss of salary – decision set aside and substituted
Lipke and Repatriation Commission [2014] AATA 729; 8/10/2014; Dr M Denovan, Member
Benefits and entitlements – eligibility for pension – rhabdomyosarcoma inability to obtain appropriate clinical management – whether these is material contribution to a condition – whether there is aggravation of a condition –  no connection between eligible defence service and condition – not entitled to any benefits – 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
May v Military Rehabilitation and Compensation Commission | [2011] AATA 886
Gaffey v Comcare | [2014] AATA 659
Threadgold v Secretary, Department of Social Services | [2014] AATA 654

Appeals finalised
CASE NAME | AAT reference | court Reference

Luck v Department of Human Services & AAT & Stephanie Ann Forgie (as Deputy President of the AAT)

[2010] AATA 6

[2014] FCA 1060
[2014] FCA 798

Polydorou v Secretary, Department of Social Services | [2014] AATA 478 | [2014] FCA 1059

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AAT Bulletin		 issue 40/2014 aat