Title: AAT Bulletin Issue No. 46/2013, 18 November 2013
Author: ta1h8
Last saved by: Novello, Mary
Company: ZOO Communications

AAT Bulletin

Issue No. 46/2013	18 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
Corporations
Customs
Immigration and Citizenship
Practice and Procedure
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
Marcelli and Military Rehabilitation and Compensation Commission [2013] AATA 789; 8/11/2013; Deputy President SD Hotop and Dr A Frazer, Member
Commonwealth employees – Member of the Defence Force – Applicant served in Royal Australian Navy (RAN) from September1993 to April 1996  – Applicant discharged from RAN on medical grounds by reason of attention deficit disorder – Applicant claimed compensation for manic depression/bipolar affective disorder in 2011 – Applicant has suffered attention deficit disorder and bipolar affective disorder – Applicant has not suffered post-traumatic stress disorder – Applicant’s attention deficit disorder and bipolar affective disorder not causally related to RAN service – Neither attention deficit disorder nor  bipolar affective disorder a compensable injury – Decision under review affirmed
Meaney and Comcare [2013] AATA 815; 15/11/2013; Senior Member RM Creyke
Commonwealth Employees – Adjustment reaction – Other contributing factors - Whether contributed to by employment to a significant degree – Decision under review affirmed
Smith and Comcare [2013] AATA 796; 30/10/2013; Senior Member RG Kenny
Walshe and Comcare [2013] AATA 812; 15/11/2013; Senior Member RM Creyke, Dr B Hughson, Member
Commonwealth employees – Employed as bus driver – Impact of non-employment factors on injury – Aggravation of condition – Whether condition significantly contributed to by employment – Decision set aside and substituted
Corporations
Murphy and Australian Securities and Investments Commission [2013] AATA 810; 15/11/2013; Senior Member G Ettinger
Registration of auditors – Registration refused – Whether Applicant satisfied all components of auditing competency standard – Whether Applicant had prescribed practical experience – Whether different considerations apply where an applicant practices in a country area – Decision affirmed

Customs
Forsyth and Chief Executive Officer of Customs [2013] AATA 793; 6/11/2013; Mr S Webb, Member
Jurisdiction – Application for review of decision to impose duty – Payment of duty on importation – Not established that duty paid under protest – Application for refund of duty – No decision made in respect of the application for refund – No jurisdiction
Immigration and Citizenship
Gentile and Minister for Immigration and Border Protection [2013] AATA 814; 15/11/2013; Dr P McDermott RFD, Senior Member
Application for Citizenship by Conferral – Whether the Applicant has a close and continuing association with Australia – Decision under review affirmed
Makasa and Minister for Immigration and Border Protection [2013] AATA 790; 8/11/2013; The Hon B Tamberlin QC, Deputy President
Visa cancellation – Failure to pass character test – Substantial criminal record – Discretion to cancel applicant's visa – Ministerial Direction No 55 – Discretion – Whether conduct in respect of which there has been an acquittal can be considered by Tribunal – Role of the Tribunal – Whether Tribunal can or should make finding in respect of such conduct – Protection of the Australian community – Seriousness and nature of the relevant conduct – The risk conduct may be repeated – Best interests of minor children – Decision under review set aside and substituted with a decision that the applicant's visa should not be cancelled
Practice and Procedure
Cambridge International College (Vic) Pty Ltd and Australian Skills Quality Authority and Anor [2013] AATA 805; 13/11/2013, Deputy President SA Forgie
EDUCATION PROVIDERS – Identification of respondents – Two reviewable decisions in single document – Identify source of power exercised in making each decision
Davey and Australian Electoral Commission and Anor [2013] AATA 794; 11/11/2013; Deputy President JW Constance
Joinder applications – Whether interests of the joinder applicants are affected by the decision – Tribunal’s discretion to make applicants parties to the proceedings
Kruger and Secretary, Department of Social Services [2013] AATA 806; 13/11/2013; Deputy President PE Hack SC
Application fee not paid – Whether application fee payable – Cancellation of parental leave pay – Whether decision under social security law – Application dismissed
Social Security
Bennington and Secretary, Department of Social Services [2013] AATA 792; 6/9/2013; Senior Member GD Friedman
Eight Week Unemployment Non Payment Period – Social Security Appeals Tribunal Substituted Decision – Applicant Cannot Achieve More Favourable Outcome – Application Frivolous – Dismissed under s 42B(1)
Duley and Secretary, Department of Social Services [2013] AATA 803; 13/11/2013; Deputy President SD Hotop
Age pension – Applicant given notice to provide statement of income – Applicant did not comply with notice – Age pension cancelled – Applicant made fresh claim for age pension – Age pension granted to applicant with effect from date of claim – Applicant’s age pension correctly cancelled – Age pension not payable to applicant in period from cancellation to fresh claim – Decision under review affirmed
Eveans and Secretary, Department of Social Services [2013] AATA 809; 14/11/2013; Dr P McDermott RFD, Senior Member
Pensions, benefits and allowances – Disability support pension – Whether 20 impairment points – Whether continuing inability to work – Decision affirmed
Goonewaradana and Secretary, Department of Social Services [2013] AATA 795; 11/11/2013; Deputy President K Bean
Debt – Overpayment – Whether applicant was entitled to obtain social security payments at the relevant time – Debts correctly raised – Effect of reparation order on discretion to waive – Whether provision for waiver in special circumstances applicable in circumstances where applicant had been convicted of making a false statement in connection with the payments – Convictions relevant to issue of 'knowingly making a false statement' but not necessarily conclusive – No special circumstances – Whether debts arose solely from administrative error – Decision under review affirmed
Horsfield and Secretary, Attorney-General’s Department [2013] AATA 811; 15/11/2013; Senior Member RG Kenny
Benefits and entitlements – Claim for Australian Government Disaster Recovery Payment (AGDRP) – No egress from property to roadway because of floodwater – Applicant’s property and place of residence thereon not flooded – Access to neighbours’ properties available – Applicant not stranded in his place of residence – Applicant not adversely affected by a major disaster – Applicant not qualified for an Australian Government Disaster Recovery Payment (AGDRP) – Decision under review affirmed
House and Secretary, Department of Social Services [2013] AATA 791; 8/11/2013; Ms K Hogan, Member
Application for Newstart Allowance – Applicant qualified for Newstart Allowance – Income maintenance period applied – Whether payments constituted leave or termination payments – Whether income maintenance period can be shortened due to severe financial hardship – Decision varied
Norman and Secretary, Department of Social Services [2013] AATA 797; 12/11/2013; Senior Member N Bell
Disability support pension – DSP – Impairment tables – Applicant does not meet impairment rating requirement – Decision under review affirmed
Pye and Secretary, Department of Social Services [2013] AATA 801; 13/11/2013; Mr S Webb, Member
Disability support pension – Assets test – Divorce – Inheritance – Ownership of assets prior to formalisation of agreed transfer – Undeclared assets – Valuation – Unrealised value – Actual or agreed value – Asset value limit exceeded – Overpayment – Debt – No administrative error – Health and financial difficulties – No special circumstances – Debt cannot be written off or waived – Decision varied
Smeets and Secretary, Department of Industry [2013] AATA 807; 16/10/2013; Ms K Hogan, Member
Taxation
Allboat Transport Pty Ltd and Commissioner of Taxation [2013] AATA 808; 14/11/2013; Dr P McDermott RFD, Senior Member
Withholding tax – Incorrect reporting – Administrative penalty – Not appropriate to remit penalty in part or in full – Objection decision affirmed
Snugfit Australia Pty Ltd and Commissioner of Taxation [2013] AATA 802; 13/11/2013; Deputy President JW Constance
Goods and Services Tax – Whether supply of product is GST-free – Medical aids and appliances – Essential character test – Decision under review set aside
Trustee for the Grewal Property Trust and Commissioner of Taxation [2013] AATA 788; 8/11/2013; Senior Member RW Dunne
Goods and services tax – Input tax credits – Audit of business activity statements – Requirement to keep records of indirect tax transactions, including records of creditable acquisitions – Assessment of GST net amount – Applicant not entitled to input tax credits claimed during the relevant period – Burden of proof – Objection decision under review varied in part
Veterans' Affairs
Campbell and Repatriation Commission [2013] AATA 798; 12/11/2013; Senior Member N Bell
Claim for war widow’s pension – Operational service – Whether veteran’s service led to death – A reasonable hypothesis raised for prostate cancer – What is the earliest date of effect – Decision under review set aside
Deslandes and Repatriation Commission [2013] AATA 800; 13/11/2013; Dr M Denovan, Member
Pensions and Benefits – Defence service with Royal Australian Navy – Statement of Principles Concerning Lumbar Spondylosis – No connection between defence service and Lumbar Spondylosis – Decision under review affirmed
Hoath and Repatriation Commission [2013] AATA 799; 12/11/2013; Senior Member AK Britton
Widows’ pension – Where hypothesis must be upheld by more than one Statement of Principles – Where the identified hypothesis relies on a number of sub-hypotheses – Whether the veteran was suffering from a “clinically significant anxiety disorder” – Decision affirmed
Krepp and Repatriation Commission [2013] AATA 786; 7/10/2013; Senior Member GD Friedman
Veterans’ and Military Compensation – Service Pension/Income Support Supplement/Pension Bonus Scheme – Overpayment of Income Support Supplement – Debt Owed To The Commonwealth – Deb Recovery – Decision Under Review Affirmed
Lansom and Repatriation Commission [2013] AATA 813; 15/11/2013; Dr M Denovan, Member
Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity – 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
May v Military Rehabilitation and Compensation Commission | [2011] AATA 886
GB Shaw & Co Pty Ltd trading as Dalby Air Maintenance v Civil Aviation Safety Authority | [2013] AATA 736
Appeals finalised	
CASE NAME | AAT reference | court Reference
Pala v Secretary, Department of Families, Housing, Community Service and Indigenous Affairs | [2013] AATA 543 | PEG254/2013

Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 502
[2013] AATA 429

[2013] FCA 1162

FTZK v Minister for Immigration and Citizenship & AAT

[2012] AATA 312

[2013] HCATrans 270
[2013] FCAFC 44

Sea Shepherd Australia v Commissioner of Taxation & AAT

[2012] AATA 520

[2013] HCATrans 271
[2013] FCAFC 68

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AAT Bulletin		 issue 46/2013 aat