Title: AAT Bulletin Issue No. 50/2015 (RTF version)
Last saved by: Tina Bridge
Company: Administrative Appeals Tribunal

AAT Bulletin
Issue No. 50/2015			14 December 2015
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 information about decisions of interest recently published in the AAT’s Migration & Refugee 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.

End of year arrangements
Many of our offices will close from 5:00pm on Thursday, 24 December 2015 and will reopen at 8:30am on Monday, 4 January 2016.
Registry services will be available between 8:30am and 5:00pm on Tuesday, 29 December, Wednesday, 30 December 2015 and Thursday, 31 December 2015 at:
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•	Level 16, 40 City Road, Southbank, Melbourne
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For more information visit our website, www.aat.gov.au or contact us on 1800 228 333.

Contents
AAT Recent Decisions
Compensation
Freedom of Information
Migration and Refugee
Practice and Procedure
Social Security
Taxation
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised

AAT Recent Decisions
This section of the Bulletin provides information about all decisions recently published in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals Divisions as well as about select decisions recently published in the Migration & Refugee Division.  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
Mayer and Comcare (Compensation) [2015] AATA 925 (1 December 2015); Mr S Webb, Member
Accepted injuries – calculation of weekly compensation for incapacity – average weekly earnings pre injury – overtime – higher duties allowance – previous Tribunal decision – effect of industrial agreements on deemed employment level and normal weekly earnings amounts – adjustment of rate of weekly compensation – decisions varied
Thelian and Comcare (Compensation) [2015] AATA 943 (7 December 2015); Deputy President JW Constance
Injury – disease – ailment – whether the disease was contributed to, to a significant degree, by his employment – whether aggravation of disease contributed to, to a significant degree, by his employment – decision affirmed
Wuth and Comcare (Compensation) [2015] AATA 947 (9 December 2015); Dr J Popple, Senior Member
Commonwealth employees – calculation of normal weekly earnings – effect of part-time working arrangements – applicant and employer understood that applicant would eventually return to full-time work – whether normal hours includes work in addition to agreed hours – decision affirmed
Commonwealth employees – permanent impairment – applicant suffers headaches – disease aggravated by work – assessment of permanent impairment – no applicable table under approved Guide – application of the AMA 5 – clinical judgment – decision set aside and substituted
Freedom of Information
Cordover and Australian Electoral Commission (Freedom of information) [2015] AATA 956 (11 December 2015); Deputy President G Melick, Ms S Taglieri, Member
Whether documents a trade secret – Definition of “trade secret” considered – Whether documents contained information having commercial value that could reasonably be expected to be diminished if information disclosed – Whether disclosure of business information could reasonably be expected to affect party adversely
Francis and Australian Information Commissioner (Freedom of information) [2015] AATA 936 (4 December 2015); Senior Member NA Manetta
Declaration of applicant as vexatious – whether access action abuse of process – previous applications for amendment of records and previous AAT decisions – held declaration appropriate
Wood; Secretary, Department of Prime Minister and Cabinet and [2015] AATA 945 (8 December 2015); Deputy President SA Forgie
Exemptions – deliberative processes – public interest – legal professional privilege decision affirmed
Migration and Refugee
Migration 
1415619 (Migration) [2015] AATA 3743 (11 November 2015); H Claringbold, Member
Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – cl 835.212 – Claimed adoptive mother – Availability of formal adoption in Fiji – Customary adoptions – Financial assistance to biological parent – Decision under review affirmed
1414936 (Migration) [2015] AATA 3657 (12 November 2015); M Bourke, Member
Contributory Parent (Migrant) (Class CA) visa – Subclass 143 – r 1.05 – Balance of family test – Visa applicant married the step child’s parent before the step child turned 18 – Decision under review remitted
1419685 (Migration) [2015] AATA 3631 (12 November 2015); R Gagliardi, Member
Partner (Temporary) (Class UK) visa – Subclass 820 – Public Interest Criteria 4020 – Provided false information in preceding 3 years for skilled visa – Slow visa processing times – Retrospective application of PIC4020 – Traditional Nepalese concept of marriage – Applicant’s home town affected by earthquakes – Sponsor’s limited residence capacity in Nepal – Departmental recommendation for waiver – Decision under review remitted
1421176 (Migration) [2015] AATA 3632 (16 November 2015); S Trotter, Member 
Partner (Provisional) (Class UF) visa – Subclass 309 – cl 309.211 – cl 309.221 – Level of committed de facto relationship – Independent finances with shared expenses – Sponsor’s overseas residence limits for taxation purposes – Significant period of time spent together in both countries – Relationship genuine and continuing – Decision under review remitted
1511220 (Migration) [2015] AATA 3733 (17 November 2015); N McGowan, Member 
Partner (Temporary) (Class UK) visa – Subclass 820 – cl 820.211(2)(d)(ii) – Compelling reasons for not applying Schedule 3 criteria – Longevity of the parties’ relationship – Australian citizen child – Emotional support provided to the sponsor and her child – Decision under review remitted
1514913 (Migration) [2015] AATA 3656 (17 November 2015); A Ho, Member 
Visitor (Class FA) visa – Kenya – Subclass 600 – cl 600.211 – cl 600.212 – Genuine temporary entrant – Adequate means to support the visit – Family members’ earlier visits were visa condition compliant – Purpose of visit to attend family events and celebrations – Decision under review remitted
1415696 (Migration) [2015] AATA 3709 (18 November 2015); D Dimitriadis, Member
Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 – cl 187.234 – Welfare worker – ANZSCO qualifications to perform the nominated occupation – Applicant does not hold a bachelor degree or higher qualification – Applicant does not have five years of relevant experience – Decision under review affirmed – No jurisdiction with third named applicant
1419717 (Migration) [2015] AATA 3713 (18 November 2015); A Mercer, Member
Student (Temporary) (Class TU) – Subclass 572 – cl 572.223(1)(a) – Genuine temporary entrant criterion – Failed to complete engineering degree – Undertook Diploma of Management course – Intention to commence a business – Limited incentive to return to Sri Lanka – Decision under review affirmed
1501161 (Migration) [2015] AATA 3698 (18 November 2015); S Webb, Member
Cancellation – s 116(1)(b) – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – cl 573.231 – cl 573.223(1A) – Applicant failed to complete pre-requisite English courses – Non-enrolment in higher degree course – Not a genuine student – Decision under review affirmed
1500111 (Migration) [2015] AATA 3711 (23 November 2015); C Smolicz, Member 
Distinguished Talent (Residence) (Class BX) visa – Subclass 858 – cl 858.212(2)(a) – Futsal player – Whether the applicant has an internationally recognised record of exceptional and outstanding achievement – Not demonstrated exceptional and outstanding achievement in Futsal – Not internationally recognised – Decision under review affirmed
Refugee
1504780 (Refugee) [2015] AATA 3604 (2 November 2015); T Eteuati, Member 
Protection visa – India – Family dispute over land – Applicant and agent did not respond to tribunal hearing invitation – Applicant given 14 days to reinstate application – Inappropriate to reinstate application – Decision under review affirmed
1404321 (Refugee) [2015] AATA 3663 (6 November 2015); R Shanahan, Member
Protection visa – Egypt – Religion – Coptic Christian – Attacks and attempted religious conversion by Muslims – Hiding Christian girls – Credibility issues – Decision under review affirmed
1501978 (Refugee) [2015] AATA 3672 (8 November 2015); G Short, Senior Member 
Protection visa – Zimbabwe – Federal Circuit Court remittal – Jurisdictional error of first tribunal – Relevant country information not considered – Imputed political opinion – Low level supporter of Movement for Democratic Change (MDC) – Relative's connection with MDC – Social group – Returnees from West – Single female with no family – Decision under review remitted
1503197 (Refugee) [2015] AATA 3621 (9 November 2015); S Pinto, Member 
Protection visa – Malaysia – Race – Ethnic Chinese – Reprisal for arrest of drug dealer – Delay in lodging visa application – State protection – Credibility issues – Decision under review affirmed
1503801 (Refugee) [2015] AATA 3679 (9 November 2015); A Paxton, Member
Protection visa – China – Religion – Falun Gong – Introduced to Falun Gong by mother – Commenced practice in 2010 – Detained by police – Genuine practitioner – Relocation unreasonable – Decision under review remitted
1406336 (Refugee) [2015] AATA 3673 (10 November 2015); S Webb, Member 
Protection visa – Irregular Maritime Arrival – Afghanistan – Race – Hazara – Religion – Shia – Jaghori District – Reasonableness of internal relocation – Access to social networks – Decision under review remitted
1410197 (Refugee) [2015] AATA 3674 (10 November 2015); D McCulloch, Member 
Protection visa – Nepal – Complementary Protection Criterion – Political opinion – Rastriya Prajantra Party – Pro-monarchists – Targeted by Maoists – Abduction of co-worker – Credibility issues – Decision under review affirmed
1402684 (Refugee) [2015] AATA 3667 (12 November 2015); L Symons, Member 
Protection visa – Irregular Maritime Arrival – Bangladesh – Parents born in Burma – Stateless Rohingya – Unregistered refugee in Bangladesh – Discrimination in employment – Credibility issues – Decision under review affirmed
1411787 (Refugee) [2015] AATA 3686 (12 November 2015); D Corrigan, Member
Protection visa – Papua New Guinea – Tribal groups – Tribal warfare – Particular social group – Teachers – Wealthy persons – Decision under review affirmed
1414739 (Refugee) [2015] AATA 3690 (16 November 2015); C Thwaites, Member 
Protection visa – Bangladesh – Imputed political opinion – Bangladesh National Party supporter – Forced donations to Awami League Party supporters – Complaints to police – Credibility issues – Decision under review affirmed
Practice and Procedure
DVVT and Secretary, Department of Social Services (Social services second review) [2015] AATA 951 (3 December 2015); Senior Member AC Cotter
Application for adjournment – Late application – Where adjournment previously granted – Proportionality considered – Minor dispute – Narrow issue – Insufficient medical evidence to support inability to appear – Application for adjournment refused
Social Security
Barzanji and Secretary, Department of Social Services (Social services second review) [2015] AATA 879 (13 November 2015); Dr I Alexander, Member
Disability support pension – spinal condition – mental health condition – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – decision affirmed
Collins and Secretary, Department of Social Services (Social services second review) [2015] AATA 948 (10 December 2015); Deputy President Dr P McDermott RFD
Disability support pension – DSP – whether applicant had relevant impairment – conditions of lateral epicondylitis, plantar fasciitis, vitamin D deficiency, fibromyalgia, osteoarthritis, depression – whether “permanent” – whether applicant’s impairment fully diagnosed, treated and stabilised – conditions “likely to improve” or “fluctuate” – conditions have limited impact on ability to function – decision under review affirmed
Galbraith and Secretary, Department of Social Services (Social services second review) [2015] AATA 950 (10 December 2015); Mr C Ermert, Member
Disability support pension – whether conditions are severe – 20 impairment points – decision affirmed
Gordon and Secretary, Department of Social Services (Social services second review) [2015] AATA 937 (4 December 2015); Senior Member NA Manetta
Pensions, benefits and allowances – disability support pension – whether applicant has severe impairment attracting 20 point rating– decision under review affirmed
Hollis; Secretary, Department of Social Services and (Social services second review) [2015] AATA 941 (4 December 2015); Deputy President G Humphries
Benefits – eligibility for childcare benefit – whether application effective – whether time can be extended beyond the following income year – whether special circumstances exist that prevented Applicant making a claim within time – decision under review set aside and substituted
Moharos and Secretary, Department of Social Services (Social services second review) [2015] AATA 958 (11 December 2015); Senior Member AC Cotter
Disability Support Pension – Review of qualification – Cancellation of entitlement – Whether applicant has 20 points or more under the Impairment Tables in force at the time of cancellation – Decision under review affirmed
SBWN; Secretary, Department of Social Services and (Social services second review) [2015] AATA 946 (9 December 2015); Miss EA Shanahan, Member
Pensions, benefits and allowances – new start allowance – full disclosure of assets not made – claim of domestic violence in the form of financial control of both income and Trust assets – claimed ignorance of such financial matters – questions of witnesses’ credit – assets estimated at $867,666.40 – decision of the Social Security Appeals Tribunal set aside
Westcott and Secretary, Department of Social Services (Social services second review) [2015] AATA 959 (11 December 2015); Senior Member AC Cotter
Overpayment of Carer’s Pension – Pension paid at single rate – Whether applicant was a “member of a couple” at the relevant time – Failure to disclose relationship status – Evidence of marriage-like relationship – Decision under review affirmed
Taxation
Crown Estates (Sales) Pty Ltd and Commissioner of Taxation (Taxation) [2015] AATA 949 (10 December 2015); Senior Member BJ McCabe
Goods and Services Tax – agency relationships – input tax credits – property management business – provision for goods and services – whether taxpayer companies made “creditable acquisitions” and “taxable supply” – were taxpayer companies acting as principal or agent – taxpayer companies in position to “create or affect legal rights and duties” – taxpayer companies acted as agents – not entitled to claim input tax credits – no creditable acquisitions – objection decisions affirmed
Veterans' Affairs
Hill and Repatriation Commission (Veterans’ entitlements) [2015] AATA 952 (10 December 2015); Deputy President Dr P McDermott RFD
Qualifying service – whether service rendered by applicant was qualifying service – decision affirmed
Lingard and Repatriation Commission (Veterans’ entitlements) [2015] AATA 939 (4 December 2015); Deputy President Dr C Kendall
VETERANS SERVICE PENSION – Informal claim – Notification of informal claim – Claim returned after three month statutory period – Request for backdating of claim date to date of informal claim on basis that veteran did not understand or notice dates noted on claim form or on basis of compassionate ground due to ill health – decision under review affirmed
Medlow and Repatriation Commission (Veterans’ entitlements) [2015] AATA 932 (12 November 2015); Senior Member NA Manetta
Veterans’ Entitlements Act – preliminary question – application lodged electronically but in an unapproved way – whether s 5T(4) required the Tribunal to reject applicants’ application for review – held s 119(1)(g) required Commission and Tribunal to ignore informality of electronic lodgement as mere technicality

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
None lodged |
Appeals finalised
CASE NAME | AAT reference | court Reference
Westrupp v BIS Industries Limited & Comcare | [2015] AATA 298 | [2015] FCAFC 173
Levao v Secretary, Department of Social Services | [2015] AATA 830 | [2015] FCA 1396

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^AAT ^BULLETIN	^ISSUE ^50/2015		^1