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AAT Bulletin

Issue No. 44/2014	10 November 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
Civil Aviation
Compensation
Export Market Development Grants
Immigration and Citizenship
Practice and Procedure
Small Taxation Claims
Social Security
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.
Civil Aviation
Jones and Civil Aviation Safety Authority [2014] AATA 820; 31/10/2014; Senior Member BJ McCabe
Cancellation of flight crew licences – Incidents occurred during filming of television series – Duty with respect to the safe navigation and operation of an aircraft – Fit and proper person – Discretion to vary, suspend or cancel – Cancellation not appropriate – Decision under review set aside and substituted – Flight crew licences suspended until applicant obtains further certification to acquire necessary knowledge and decision-making skills for those licences
Compensation
Hunter and Comcare [2014] AATA 827; 4/11/2014; Deputy President PE Hack SC
Whether necessary relationship between ailment and employment – whether reasonable administrative action – evidence does not support applicant’s claim – decision under review affirmed
Irwin and K & S Freighters Pty Limited [2014] AATA 840; 7/11/2014; Senior Member E Fice
Injury simpliciter – right rotator cuff tendinitis – injury or aggravation of injury – delayed report of injury – treatment prior to claim – apparent inconsistent evidence – Jones v Dunkel inference – decision set aside and remitted.
Lindoy and Comcare [2014] AATA 838; 7/11/2014; The Hon RJ Groom, Deputy President and Dr R Walters, Member
Major depressive disorder (single episode) – whether an aggravation of pre-existing psychiatric illness – not contributed to, to a significant degree by employment – decision under review affirmed
Export Market Development Grants
Asia Pacific Aircraft Storage Pty Ltd and Australian Trade Commission [2014] AATA 835; 6/11/2014; Deputy President IR Molloy
Australian exporters – Grants assisting international promotion of products – Eligible products and services – Eligible tourism and non-tourism services – Service relating to protection operation or maintenance of assets – Assets held in Australia – Decision under review affirmed
Immigration and Citizenship
Forster and Minister for Immigration and Border Protection [2014] AATA 829; 5/11/2014; Senior Member N Isenberg
Refusal of application for citizenship by conferral – whether the applicant is of good character – common assault – no conviction recorded – good behaviour bond – decision set aside and remitted
Mahmoud and Anor and Minister for Immigration and Border Protection [2014] AATA 824; 4/11/2014; Professor R McCallum AO, Member
Application for Australian citizenship – Whether the Applicant is of “good character” – Applicant’s criminal history – Nature of offences – Extenuating circumstances – Citizenship application of child directly linked to citizenship application of parent – Decision set aside and remitted
Namaan and Ors and Minister for Immigration and Border Protection [2014] AATA 834; 5/11/2014; Senior Member N Isenberg
Application for Australian Citizenship – General Residence Requirements not Satisfied – Whether the Applicants were present in Australia as unlawful non-citizens due to an administrative error – Whether the discretion to treat a period as one in which the Applicants were not present in Australia as an unlawful non-citizens should be exercised – Children’s applications for citizenship – Decisions affirmed
Plunkett and Minister for Immigration and Border Protection [2014] AATA 828; 5/11/2014; Senior Member N Isenberg
Application for Australian Citizenship – General Residence Requirements not satisfied – Whether administrative error – No administrative error – No significant hardship or disadvantage – Decision under review affirmed
Practice and Procedure
Cremona and Secretary, Department of Social Services [2014] AATA 836; 14/10/2014; Deputy President FJ Alpins
Application for reinstatement – application for review of decision concerning cancellation of carer payment under Social Security Act 1991 (Cth) – application dismissed for failure to appear at hearing of proceeding – applicant failed to appear because Tribunal not constituted as requested prior to hearing – whether reasonable excuse for failure to appear – whether application for review had sufficient prospects of success – application for reinstatement dismissed
Jones and Commissioner of Taxation [2014] AATA 821; 15/10/2014; Senior Member BJ McCabe
Taxation – Objection decision – Teacher – Alleged education related expenditure – CDs and DVDs for personal use not deductible – Items essentially private or domestic expenditures not deductible – Distributing resources for purposes of education deductible – Costs of acquiring or developing teaching aids deductible – Link between expenditure and income producing activity cannot be too remote – Necessary to characterise expenditure and determine existence of nexus – Claim for the work-related vehicle expenses rejected – Claim for home office expenses rejected – Decision affirmed
Small Taxation Claims
Watson and Commissioner of Taxation [2014] AATA 823; 4/11/2014; Professor R Deutsch, Deputy President
Income tax – application for debt release – exercise of discretion – decision affirmed
Social Security
Hay and Secretary, Department of Social Services [2014] AATA 822; 3/11/2014; Deputy President JW Constance
Disability support pension – whether conditions permanent – whether conditions fully diagnosed, treated and stabilised – fluctuating condition – total impairment rating of 10 points – decision affirmed
Morrison and Secretary, Department of Social Services [2014] AATA 825; 4/11/2014; Ms S Taglieri, Member
Compensation preclusion period – correct amount of compensation part of lump sum compensation payment – whether special circumstances and whether discretion to disregard a part of lump sum should be exercised
Naidu and Secretary, Department of Social Services [2014] AATA 833; 6/11/2014; Professor R McCallum AO, Member
Disability support pension – Income test–Whether the applicant is a member of a couple – Whether the applicant’s wife’s income should be taken into account in calculating the applicant’s rate of disability support pension – Whether there are special reasons the applicant should be treated as not a member of a couple – Whether the applicant was discriminated against on the grounds of his disability – Decision affirmed
O’Connor and Secretary, Department of Social Services [2014] AATA 816; 31/10/2014; Deputy President K Bean
Disability support pension – Departmental review of applicant's ongoing qualification for DSP – DSP cancelled – Whether applicant satisfied criteria for DSP as at date of cancellation – Impairments do not attract 20 points under Impairment Tables – Decision under review affirmed
Tomasevic and Secretary, Department of Social Services [2014] AATA 830; 5/11/2014; Deputy President SA Forgie
Youth allowance – activity test – whether undertaking full-time study – whether special circumstances – recovery of debt waived in SSAT hearing – not subject of review
Student start up scholarship – whether exceptional circumstances for not undertaking full-time study – relevant period
WORDS AND PHRASES – special circumstances – exceptional circumstances
Wong and Secretary, Department of Social Services [2014] AATA 831; 5/11/2014; Mr C Ermert, Member
Carer payment – carer allowance – absence from Australia – maximum portability period – whether unable to return to Australia – serious illness – hospitalisation – decision affirmed
Wong and Secretary, Department of Social Services [2014] AATA 832; 5/11/2014; Mr C Ermert, Member
Disability support pension – maximum portability period – extend portability period – serious illness – hospitalisation – decision affirmed
Veterans' Affairs
Strong and Repatriation Commission [2014] AATA 826; 4/11/2014; Dr M Denovan, Member
Benefits and entitlements – Eligibility for pension – Posttraumatic Stress Disorder – PTSD – Alcohol Use Disorder – Depressive Disorder – Anxiety Disorder – GAD – Adjustment Disorder – Operational service – No reasonable hypothesis connecting disease with service – Whether condition contributed to by eligible service – Decision under review affirmed
Tovey and Repatriation Commission [2014] AATA 837; 6/11/2014; Deputy President IR Molloy
Varicose Veins of the Lower Limbs – Chronic Obstructive Pulmonary Disease – Hypertension – Chronic Bronchitis and Emphysema – Whether conditions defence-caused injuries or diseases – Not related to service – Decision under review 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
Scanlon & Scanlon v Commissioner of Taxation | [2014] AATA 725
Cremona v AAT & Secretary, Department of Families, Housing, Community Services and Indigenous Affairs | [2014] AATA 122

Appeals finalised
CASE NAME | AAT reference | court Reference
R.V. Investments (Aust) Pty Ltd as trustee of R.V. Unit Trust v Commissioner of Taxation & AAT | [2014] AATA 158 | [2014] FCA 1169

Alphapharm Pty Ltd v H Lundbeck A/S & Ors

[2012] AATA 851

[2014] HCA 42
[2014] HCATrans 79
[2013] FCAFC 129

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AAT Bulletin		 issue 44/2014 aat