AAT Bulletin
Issue No. 15/2019                      15 April 2019
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, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. The Bulletin also regularly includes a sample of decisions recently published in the AAT’s Migration & Refugee Division and Social Services & Child Support Division. It occasionally includes information on legislative changes that affect the AAT. 
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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.
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Contents
AAT Recent Decisions
Citizenship
Compensation
Corporations
Education and Research
Migration
Practice and Procedure
Social Security
Transport
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, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals. This list also includes selected child support decisions published by the Social Services & Child Support Division and examples of recent decisions published by 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.
Citizenship
Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669 (11 April 2019); Senior Member K Raif
CITIZENSHIP – refusal to grant Australian Citizenship by conferral – applicant has limited understanding of English language – section 21(3) of Australian Citizenship Act – whether applicant had permanent or enduring physical or mental incapacity – whether not capable of understanding the nature of the application – whether not capable of demonstrating a basic knowledge of English – whether no capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship – decision affirmed
Hameed and Minister for Home Affairs (Citizenship) [2019] AATA 675 (11 February 2019); R West, Member
CITIZENSHIP – Application for citizenship by descent – review of refusal decision – whether the applicant had an Australian citizen parent at time of birth – not biological parents – extended meaning of ‘parent’ – test not satisfied – decision affirmed
Kivalu and Minister for Home Affairs (Citizenship) [2018] AATA 5156 (17 August 2018); Deputy President I Hanger AM QC
AUSTRALIAN CITIZENSHIP – adoptive mother – cultural adoption – birth certificate – Bridging Visa E – legal adoption – biological parent – ordinary meaning of the word “parent” – parent’s conduct before and at the time of birth
Wang and Minister for Home Affairs (Citizenship) [2019] AATA 665 (5 April 2019); Senior Member C Puplick AM
CITIZENSHIP – application for Australian citizenship – citizenship by conferral – character requirement – decision under review set aside  

Compensation
Arbon and Comcare (Compensation) [2019] AATA 663 (25 March 2019); Deputy President P Britten-Jones and D Ben-Tovim, Member
COMPENSATION – thyroid cancer – applicant worked at Maralinga – applicant was exposed to a low level of ionising radiation – whether the statutory presumption in s 7(1) of the Safety, Rehabilitation and Compensation Act 1988 applies – employment involving exposure to ionising radiation – consideration of what kind of employment the applicant was engaged in for the purposes of s 7(1)(c) of the Safety, Rehabilitation and Compensation Act 1988 – applicant was an electrician and his work duties did not require him to attend in contaminated areas – presumption does not apply – was thyroid cancer contributed to by his employment to a significant degree – causation and epidemiological studies – decision affirmed
Church and Comcare (Compensation) [2019] AATA 673 (9 April 2019); Senior Member C Puplick AM
Workers’ Compensation – injury sustained in 1986 – reasonable medical expenses – chiropractic treatment – lumbar disc prolapse  – injury misdiagnosed – applicant no longer suffering the effects of the accepted injury – whether Applicant presently entitled to medical expenses – decision under review affirmed
Corporations
Legat and Australian Securities and Investments Commission [2019] AATA 685 (9 April 2019); Deputy President BJ McCabe
CORPORATIONS – banning order – prohibition from engaging in any credit activities for a period of 3 years – contravention of consumer credit regulations – model of operation to avoid interest rate cap – sham business model – misleading and deceptive conduct – poor diligence, competence and judgement – contempt for decisions of Federal Court and Tribunal – whether applicant is likely to contravene credit legislation, or be involved in the contravention of any credit legislation – fit and proper person – regulatory action – protection of consumers – specific deterrence – general deterrence – decision under review is varied – banning period increased
Education and Research
Last and Secretary, Department of Education and Training [2019] AATA 658 (8 April 2019); Senior Member C Puplick AM
EDUCATION – FEE-HELP debt – application for remittal of debt – standard of units delivered – applicant completed units – does not satisfy special circumstances – decision under review affirmed

Migration
Di Stefano and Minister for Home Affairs (Migration) [2019] AATA 677 (12 April 2019); Dr M Evans, Senior Member
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Applicant convicted of approximately 70 offences over a 30 year period  –  Direction no. 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant has resided in Australia for approximately 38 years – extent of impediments if returned to Italy – reviewable decision affirmed
DMSB and Minister for Home Affairs (Migration) [2019] AATA 679 (15 March 2019); K Parker, Member
MIGRATION – application for review of decision to refuse protection visa on character grounds – Sudanese citizen – previous finding that Australia owes protection obligations to applicant – applicant lawfully present in Australia for last 20 years on successive bridging visas awaiting processing of visa application – applicant committed drug-related and other offences – applicant diagnosed with psychological condition – effects of drug addiction – applicant does not pass character test – whether discretion should be exercised to refuse visa application under s 501(1) of the Migration Act 1958 (Cth) – expectations of Australian community – protection of Australian community – likelihood of relapse and reoffending – nature of harm – existence of protective factors that did not exist previously – reliance upon expert evidence by psychiatrist – decision set aside
GZCK and Minister for Home Affairs (Migration) [2019] AATA 656 (5 April 2019); Mr A Maryniak QC, Member
Migration – protection visa – refugee – whether the Applicant committed war crimes – whether the Applicant was a member of the LTTE – whether witness is credible – whether witness is reliable – misleading government officials – international law - Sri Lanka – Refugee Convention – Rome Statute – decision affirmed
Lumanovski and Minister for Home Affairs (Migration) [2019] AATA 681 (13 February 2019); Ms A Burke AO, Member
MIGRATION – visa refusal – applicant is a citizen of the Former Yugoslav Republic of Macedonia (FYROM) – applicant applied for a Bridging visa – applicant does not pass character test in s 501(6) of the Migration Act 1958 – applicant not of good character on account of criminal conduct – whether discretion to refuse visa should be exercised – applicant does not present unacceptable risk of re-offending – impact on family and business interest – decision under review set
Ma'afu and Minister for Home Affairs (Migration) [2019] AATA 684 (9 April 2019); Senior Member T Tavoularis
MIGRATION – REVOCATION OF MANDATORY CANCELLATION OF VISA ON CHARACTER GROUNDS – expedited matter – applicant failed to pass the character test – sentenced to 12 months’ imprisonment or more – whether there is any other reason to revoke the mandatory cancellation of the Applicant’s visa – considerations in Direction 79 – decision under review set aside and substituted
PKBV and Minister for Home Affairs (Migration) [2019] AATA 683 (9 April 2019); Deputy President The Hon. Dennis Cowdroy OAM QC
MIGRATION – mandatory cancellation of visa – failure to pass character test – criminal record – whether the discretion to revoke the cancellation should be exercised – Direction No. 79 – primary considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed
Practice and Procedure
Hewawasam Revulge and Secretary, Department of Social Services (Social services second review) [2019] AATA 674 (17 January 2019); Ms A Burke AO, Member
SOCIAL SERVICES – whether applicant entitled to Austudy payment – whether doctoral degree at Queensland University of Technology an approved course – whether incorrect advice provided by Centrelink – no reasonable prospects of success – interlocutory application granted - matter dismissed
PVQQ and Secretary, Department of Education [2019] AATA 659 (5 April 2019); Senior Member BJ Illingworth
HIGHER EDUCATION SUPPORT – FEE-HELP – remission of debt – whether the applicant’s circumstances were beyond the applicant’s control – medical evidence – whether special circumstances exist – extension of time application – extension of time refused
Social Security
Arman and Secretary, Department of Social Services (Social services second review) [2019] AATA 678 (10 April 2019); K Parker, Member
SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – osteoarthritis (right knee) – post-traumatic stress disorder – persistent depressive disorder (dysthymia) – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised and likely to persist for longer than two years – whether applicant had undertaken reasonable medical treatment – impairment of lower limb function – meaning of “assistance” in Table 3 of the Impairment Tables – impairment of mental health function – whether applicant had “continuing inability to work” – whether applicant met “program of support” requirements – meaning of “actively participated in a program of support” – decision affirmed
Beattie and Secretary, Department of Social Services (Social services second review) [2018] AATA 5158 (21 September 2018); C Edwardes, Member
Social Security – disability support pension – medical conditions – neck and back pain – migraine – fibromyalgia – palpitations – tumour in left shoulder – mental health – qualification period – impairment tables – continuing inability to work rating – participation in program of support – decision under review

Campagna and Secretary, Department of Social Services (Social services second review) [2018] AATA 5160 (14 December 2018); Ms A Burke, Member
SOCIAL SECURITY – family tax benefit/rent assistance – overpayment – debt due to the Commonwealth – whether recovery of debt should be written off or waived – whether debt attributable solely to error made by Centrelink – no special circumstances – decision under review affirmed
Chisholm and Secretary, Department of Social Services (Social services second review) [2019] AATA 671 (12 April 2019); M Hyman, Member
SOCIAL SECURITY – disability support pension – cancellation – ischaemic heart disease – major depressive disorder – whether fully diagnosed, fully treated and fully stabilised – decision affirmed
Eom and Secretary, Department of Social Services (Social services second review) [2019] AATA 662 (8 April 2019); D Mitchell, Member
SOCIAL SECURITY – disability support pension – DSP – 20 points across multiple impairment tables, whether there is a continuing inability to work, whether the Applicant had actively participated in a program of support, whether an exemption to participation applied – decision under review affirmed
FCLQ and Secretary, Department of Social Services (Social services second review) [2019] AATA 672 (29 March 2019); Senior Member DJ Morris
SOCIAL SECURITY – family tax benefit – was there a change in pattern and percentage of care of FTB children – signed form submitted by both parents advising of parenting plan – Social Services & Child Support Division decision affirmed
Hamid and Secretary, Department of Social Services (Social services second review) [2019] AATA 676 (12 April 2019); Dr I Alexander, Senior Member
SOCIAL SECURITY – Newstart Allowance – Carer Payment – undeclared income – unexplained cash deposits – assets test – whether legal interest in title of property is an asset for the purposes of assets test – constructive trust – no beneficial interest – decision set aside and remitted
Hobden and Secretary, Department of Social Services (Social services second review) [2019] AATA 680 (8 April 2019); G Hallwood, Member
SOCIAL SECURITY – Carer Allowance – Date lodged – Deemed date – Payment start date – Mistaken advice – Decision under review is set aside
Jordan and Secretary, Department of Social Services (Social services second review) [2019] AATA 660 (8 April 2019); Ms A Burke AO, Member
SOCIAL SECURITY – application for disability support pension – whether qualified –major depressive disorder – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted 

Marshall and Secretary, Department of Social Services (Social services second review) [2019] AATA 670 (4 April 2019); Senior Member C Puplick AM 
SOCIAL SECURITY – Newstart – preclusion period – compensation payment – application of statutory formula – compensation payment for personal injury received – whether special circumstances exist – financial hardship – decision set aside 
ZVTL and Secretary, Department of Social Services (Social services second review) [2019] AATA 682 (9 April 2019); Professor R McCallum AO, Member
SOCIAL SECURITY – Austudy debt owed to the Commonwealth – applicant ceased studying on a full-time basis – whether debt should be written off, waived or set aside – debt recoverable at law – applicant knowingly failed to report that he was not studying full-time – applicant has capacity to repay the debt – no special circumstances to justify waiver of the debt – decision under review affirmed
Transport
Ham and Minister for Urban Infrastructure and Cities [2019] AATA 664 (8 April 2019); Senior Member PJ Clauson
TRANSPORT – motor vehicle importation – nonstandard vehicle – not owned for 12 months prior to return to Australia – should the regulation 11 discretion be exercised – decision under review set aside
Whalley and Minister for Infrastructure, Transport and Regional Development [2019] AATA 661 (8 April 2019); Deputy President J Sosso
TRANSPORT – importation of motor vehicle – non-standard vehicle – gift from mother – exercise of discretion – no grounds for exercise of discretion – decision affirmed
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, Small Business Taxation, 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	
DGBK and Minister for Home Affairs	[2019] AATA 243	
Humane Society International (Australia) Inc and Department of Agriculture & Fisheries	[2019] AATA 617	
Appeals finalised
CASE NAME	AAT reference	court Reference	
Commonwealth of Australia v Snell	[2018] AATA 1107	[2019] FCAFC 57	
DKXY v Minister for Home Affairs	[2018] AATA 3779	[2019] FCA 495	
Hong v Minister for Immigration and Border Protection	[2017] AATA 2386	[2018] FCA 1085
[2019] FCAFC 55	

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