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AAT Bulletin

Issue No. 45/2013	11 November 2013
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
Social Security
Taxation
Appeals
Appeals lodged
Appeals finalised
Statements of Principles
New Statements of Principles

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
Keys and Comcare [2013] AATA 782; 5/11/2013; Mr S Webb, Member
Knee injury claim – Alleged sprain and aggravation of osteoarthritis – Former employee undertaking a rehabilitation program – Functional capacity assessment relating to prospective employment for the purpose of the rehabilitation program – Knee pain – Unreliable evidence – Not established that left knee symptoms commenced or increased in compensable circumstances – Decision affirmed
Immigration and Citizenship
Wong and Minister for Immigration and Border Protection [2013] AATA 775; 30/10/2013; Ms K Hogan, Member 
Application for citizenship by conferral – Whether applicant is able to satisfy the ‘good character’ requirements of s 21(2)(h) of the Australian Citizenship Act 2007 – Applicant overseas for significant periods since obtaining permanent residence – Applicant did not provide overseas penal clearances – Decision affirmed
Social Security
Mason and Secretary, Department of Social Services [2013] AATA 781; 1/11/2013; Deputy President PE Hack SC
Qualification – Age pension – Residence – Decision affirmed
Noble and Secretary, Department of Social Services [2013] AATA 784; 7/11/2013; Senior Member RG Kenny
Benefits and entitlements – Relocation scholarship payment – Qualification for youth allowance at the independent rate based on self – Supporting employment – Qualification requirements for relocation scholarship payment not met – Decision affirmed
RWYM and Secretary, Department of Social Services [2013] AATA 776; 1/11/2013; Senior Member BJ McCabe
Pensions, benefits and allowance – Disability support pension – Whether applicant’s impairment rating is of 20 points or more – Decision affirmed

Smith and Secretary, Department of Social Services [2013] AATA 787; 8/11/2013; Dr M Denovan, Member
Pensions, benefits and allowances – Age pension – Disposal of asset – Lack of adequate consideration – Decision affirmed
Stevens and Secretary, Department of Social Services [2013] AATA 785; 7/11/2013; Senior Member RG Kenny
Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment from heart condition, back condition and hearing loss – Impairment Tables – Conditions fully diagnosed, treated, stabilised and likely to persist for more than 2 years – Overall impairment rating less than 20 points – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed  
Taxation
Taxpayer and Commissioner of Taxation [2013] AATA 783; 4/11/2013; Senior Member CR Walsh
Income tax – Deductibility of legal expenses – Whether legal expenses incurred in challenging an ASIC banning order prohibiting taxpayer from providing any financial services for 5 year period in the Federal Court and in defending criminal charges for insider trading were incurred by taxpayer ‘in the course of’ gaining or producing assessable income – Whether Federal Court legal expenses non-deductible capital expenditure – Whether criminal charged legal expenses non-deductible private expenditure – Whether private ruling relating to previous income years binding on Commissioner in relation to income year under review – Whether taxpayer ‘employee’ – Whether taxpayer’s position as stockbroker ‘suspended’ or ‘terminated’ – Objection 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
SZRSN v Minister for Immigration and Citizenship & AAT | [2010] AATA 1034
O’Kane v Comcare | [2013] AATA 722
Appeals finalised	
CASE NAME | AAT reference | court Reference
Doherty v Inspector-General in Bankruptcy | [2012] AATA 635 | [2013] FCA 1122

Comcare v Lilley

[2011] AATA 472

[2013] FCAFC 121
[2013] FCA 26

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 Tribunal has been advised that the Repatriation Medical Authority has made the following new Statements of Principles.  They take effect from 13 November 2013.
 
Chronic solvent encephalopathy – No. 71 of 2013 
http://www.comlaw.gov.au/Details/F2013L01886

Chronic solvent encephalopathy – No. 72 of 2013 
http://www.comlaw.gov.au/Details/F2013L01888

Malignant neoplasm of the pancreas – No. 73 of 2013
http://www.comlaw.gov.au/Details/F2013L01891

Malignant neoplasm of the pancreas – No. 74 of 2013
http://www.comlaw.gov.au/Details/F2013L01893

Epilepsy – No. 75 of 2013
http://www.comlaw.gov.au/Details/F2013L01894

Epilepsy – No. 76 of 2013
http://www.comlaw.gov.au/Details/F2013L01895

Epileptic seizure – No. 77 of 2013
http://www.comlaw.gov.au/Details/F2013L01897

Epileptic seizure – No. 78 of 2013
http://www.comlaw.gov.au/Details/F2013L01899

Steatohepatitis – No. 79 of 2013
http://www.comlaw.gov.au/Details/F2013L01898

Steatohepatitis – No. 80 of 2013
http://www.comlaw.gov.au/Details/F2013L01900

© Commonwealth of Australia 2013

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AAT Bulletin		 issue 45/2013 aat