AAT Bulletin
Issue No. 18/2022                   5 September 2022
The AAT Bulletin is a fortnightly 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. 
It is recommended that the Bulletin be read online. 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
Aviation
Citizenship
Compensation
Migration
National Disability Insurance Scheme
Practice and Procedure
Professions and Trades
Refugee
Social Services
Superannuation
Taxation
Appeals
Appeals lodged
Appeals finalised
Statements of Principles
New Statements of Principles
Amended Statements of Principles
Statements of Principles to be revoked

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.
Aviation
Bush and Civil Aviation Safety Authority [2022] AATA 2821 (26 August 2022); J Sosso, Deputy President
CIVIL AVIATION – Class 1 and 2 medical certificates – Applicant born with and suffers from Ebstein’s Anomaly – ablations to treat atrial flutter – no episodes of syncope – conflicting medical opinion – safety-relevant condition – whether Applicant should be issued a Class 2 medical certificate subject to conditions – decision under review set aside and substituted

Child Support
Cleveland and Bridge (Child support) [2022] AATA 2113 (22 May 2022); R Ellis, Senior Member
CHILD SUPPORT – non-agency payment – whether mortgage payments should be credited as prescribed payments – all conditions to credit are satisfied – discretion to refuse – decision under review set aside and substituted

Bugden and Sarchet (Child support) [2022] AATA 2120 (7 June 2022); T Bubutievski, Member
CHILD SUPPORT – registration details – application for collection of the maintenance liability – whether the application for collection and arrears should be accepted – the application for collection and arrears correctly accepted – decision under review affirmed

Graves and Graves (Child support) [2022] AATA 2379 (15 June 2022); J D'Arcy, Member
CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted

Lyashenko and Siremevan (Child support) [2022] AATA 2377 (16 June 2022); M Kennedy, Senior Member
CHILD SUPPORT – departure determination – whether there was a ground for departure – costs of special needs significantly affect the cost of maintaining the child – income, property and financial resources of the parents – decision under review set aside and substituted 

Citizenship
Alshoka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2829 (26 August 2022); Dr L Kirk, Senior Member
CITIZENSHIP – whether Tribunal is satisfied of the identity of the Applicant – whether Applicant is of “good character” – Whether Applicant has provided misleading information to the Department – decision under review set aside and remitted

Arol and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2833 (25 August 2022); C Puplick AM, Senior Member
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person – applicant claims to be a stateless person – documentary – biometric – life story – application of Citizenship Procedural Instructions – applicant request to extend scope of review to consider character issues – request refused – decision set aside and remitted

Tannenbaum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2739 (12 August 2022); Dr P McDermott RFD, Deputy President
Application for Australian citizenship – character test – whether applicant of good character – where applicant not available for examination – fraud forgery and other serious offences – outstanding arrest warrant – where extradition process not commenced – where false or misleading statements – where decision under review affirmed

Compensation
Moussavi and Comcare (Compensation) [2022] AATA 2838 (1 September 2022); R Cameron, Senior Member
COMPENSATION – two applications – accepted that claimed condition outside boundaries of normal mental functioning – accepted that claimed condition was contributed to by employment – issues for determination – whether condition suffered resulted from reasonable administrative action – whether condition suffered is permanent – if permanent, to what degree – deployment to Nauru – working as a translator – claimed condition found to be adjustment disorder – applicant likely to remain significantly psychiatrically impaired – impairment not resolved and considered permanent – decisions set aside and substituted

WQCL and Comcare (Compensation) [2022] AATA 2808 (25 August 2022); R Reitano, Member
WORKER’S COMPENSATION – neck, shoulder, arm and hand pain – where Applicant has a pre-existing condition – whether Applicant has a disease – whether Applicant has an injury – whether there was an ailment suffered by an employee – whether the ailment was contributed to, to a significant degree, by the employee’s employment – whether Applicant is entitled to compensation – decision set aside and substituted 

Migration
Aljorani and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2811 (25 July 2022); T Tavoularis, Senior Member and D Cosgrave, Member
MIGRATION – Cancellation of Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) – where Applicant does not pass the character test – substantial criminal record – consideration of Ministerial Direction No. 90 – decision under review affirmed

BKTS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2733 (11 August 2022); C J Furnell, Senior Member
MIGRATION – refusal to grant Protection (Class XA) visa – Migration Act 1958 (Cth) s 501(1) – applicant does not pass character test – substantial criminal record – whether to exercise discretion to refuse to grant the applicant the visa – Direction 90 – South Sudan – indefinite detention – primary and other considerations – decision under review affirmed

Canepa Uranga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2815 (26 August 2022); D J Morris, Senior Member
MIGRATION – where applicant is a citizen of the Oriental Republic of Uruguay – where applicant held Partner (subclass 100) visa – visa cancelled – where delegate of minister decided not to revoke the cancellation – review by Tribunal – ministerial Direction – primary considerations – protection of Australian community from criminal or other serious conduct – where applicant has been convicted of several armed robberies – where applicant also convicted of fraud – best interests of minor children in Australia – expectations of Australian community – extent of impediments if removed – links to the Australian community – decision under review is affirmed

Chand and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2752 (26 July 2022); A McLean Williams, Member
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Subclass 444) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted

CRFF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2750 (19 August 2022); Dr L Bygrave, Member
MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (temporary) visa – visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) – Applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence committed by the Applicant – best interests of minor children – other considerations – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – decision under set aside and substituted

GVTK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2751 (28 July 2022); R Bellamy, Senior Member and A Julian-Armitage, Member
MIGRATION – Non-revocation of mandatory cancellation of a Class EN Subclass 186 Employer Nomination (permanent) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – drug trafficking – mental illness – decision under review affirmed

Hanna and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2753 (23 August 2022); R Cameron, Senior Member
MIGRATION – mandatory cancellation of visa – Class XB Subclass 200 Refugee Visa – applicant non-citizen born in Iraq – sexual offending against a child – contents of Direction 90 – risk of re-offending – rehabilitation and remorse – expectations of the Australian community – international non-refoulement obligations – decision affirmed

HBMH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2825 (4 August 2022); L M Gallagher, Member
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – criminal record – sexual offence against a child – Direction No. 90 – primary and other considerations – protection of the Australian community – family violence – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 70-year-old man who came to Australia as a 9-year-old – reviewable decision affirmed

HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2754 (19 July 2022); T Tavoularis, Senior Member
MIGRATION – refusal of application for Protection (Class XA) visa – where Applicant does not pass the character test – whether the discretion in section 501(1) should be exercised – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted

JJRB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2734 (12 August 2022); W Frost, Member
MIGRATION – decision of delegate of the Minister to refuse application for a Class XA Protection Visa – failure to pass the character test – violent and sexually based offences – Direction 90 – primary and other considerations – protection of the Australian community – expectations of the Australian community – Australia’s non-refoulement obligations – consideration of the interests of minor children – weight to be given to the primary and other considerations – decision under review affirmed

JVGD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2830 (30 August 2022); Dr M Evans-Bonner, Senior Member
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – Applicant is a 28-year-old man who arrived in Australia when he was a 12-year-old child as the holder of a Class XB Subclass 202 Global Special Humanitarian visa – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – offences involving family violence – best interests of Applicant’s minor daughter and siblings – minimal information about siblings – expectations of the Australian community – Australia’s international non-refoulement obligations – Applicant born in Ethiopia to parents who were citizens of Sudan – Country of reference is Sudan –  Applicant previously found by AAT to be owed protection obligations – impact on victims – links to the Australian community – strength, nature and duration of ties to Australia – prospect of indefinite or prolonged detention – Reviewable Decision affirmed

Kapanadze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2749 (18 August 2022); C Puplick AM, Senior Member
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – expectations of the Australian community – non-refoulement – impediments to removal – links to the Australian community – decision affirmed

Khamisi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2748 (23 August 2022); R Cameron, Senior Member
MIGRATION – Mandatory visa cancellation – Class XB Subclass 200 Refugee Visa –– failure to pass character test – substantial criminal record – people smuggling – assault in company – destroy or damage property – driving offences – Ministerial Direction No. 90 applied – primary and other considerations – reviewable decision affirmed

Lomata and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2835 (9 August 2022); T Tavoularis, Senior Member
MIGRATION – Non-revocation of a mandatory cancellation of a Class BS Subclass 801 Partner visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – family / domestic violence – indecent treatment of children – non-refoulement obligations (Fiji) – decision under review affirmed

LRMM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2731 (19 August 2022); D J Morris, Senior Member
MIGRATION – where applicant held Refugee (Class XB)(Subclass 200) visa – where visa cancelled mandatorily under provisions of Migration Act relating to substantial criminal record – where applicant sought revocation of mandatory cancellation – where delegate of Minister refused – where applicant sought review by Tribunal – where decision of Tribunal quashed and matter remitted for fresh consideration – is there another reason to revoke mandatory cancellation – threshold question – what is applicant’s country of citizenship – applicant entitled to citizenship of Ethiopia – ministerial Direction No. 90 – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of Australian community – international non-refoulement obligations – what is the country of reference – extent of impediments if removed – links to Australian community – decision under review is affirmed

QBXR and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2828 (1 August 2022); Dr L Kirk, Senior Member
MIGRATION – refusal to grant visa on character grounds – whether the applicant passes the character test – where applicant has a sentence of imprisonment of twelve months or greater – Direction No. 90 considered – where risk of reoffending is low – where offending is very serious – domestic violence – best interests of minor children – where applicant is owed protection obligations – where applicant has links to Australian community through friends and family – where applicant faces indefinite detention – decision set aside and remitted 

RDYQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2738 (22 August 2022); J C Kelly, Senior Member
MIGRATION – visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under s 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – Direction No. 90 considered – primary and other considerations considered – Applicant’s criminal history and background considered – reviewable decision affirmed

SBMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2827 (29 August 2022); B J Illingworth, Senior Member
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 Refugee visa – where Applicant does not pass the character test – serious criminal record – whether “another reason” to revoke visa cancellation – Ministerial Direction 90 – decision under review is set aside

SQHG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2810 (28 July 2022); D O'Donovan, Senior Member
MIGRATION – Discretion to refuse a Protection (Class XA) (Subclass 866) Visa – where Applicant does not pass the character test – significant criminal record – whether discretion to refuse the visa should be exercised – Decision under review set aside

TCXM and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2820 (22 August 2022); A Nikolic AM CSC, Senior Member
MIGRATION – mandatory visa cancellation – citizen of [redacted] – fraudulent passport on entry to Australia – where Applicant granted Protection Class AZ (Subclass 866) visa – convicted of murder – failure to pass good character test – substantial criminal record –where Applicant disputes jury conviction for murder – mandatory visa cancellation – non-revocation – violent offending – family violence – new evidence suggesting possible breach of Article 1F of Refugees Convention – misconduct in custodial settings – where Applicant owed non-refoulement obligations – prospect of indefinite detention – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 90 applied – decision affirmed

VRBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2732 (11 August 2022); R West, Member
MIGRATION – refugee – application for Protection Visa – applicant has substantial criminal record and does not pass the character test – whether discretion not to refuse visa should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of a minor child – expectations of the Australian community – non-refoulment obligations – extent of impediments if removed – links to the Australian community – other considerations – decision set aside

VRHW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2747 (23 August 2022); K Raif, Senior Member
MIGRATION – refusal to grant a Class WE Bridging E visa (BVE) – where visa was refused under s 501(1) because applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – expectations of the Australian community – other considerations – international non-refoulement obligations – extent of impediments if removed – links to the Australian community – the strength, nature and duration of ties to Australia – refusal of visa is not revoked – decision under review affirmed

Anguralia (Migration) [2022] AATA 2568 (29 April 2022); L Hawas, Member
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – employment terminated within 2 years – genuine effort to engage in the employment – demotion – pay reduction – increased workload – mistreatment – contemporaneous communication with migration agent – employment history – decision under review set aside

Fernando (Migration) [2022] AATA 2569 (2 May 2022); M Brophy, Member
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adopted child – dependent child of the sponsor – not holder of substantive visa at time of visa application – section 48(1A) applies – time of application criteria – whether became dependent child since last visa application – compassionate circumstances of hardship and distress – unfair or unreasonable result – Ministerial Intervention requested – decision under review affirmed

Punjabii By Nature Pty Ltd (Migration) [2022] AATA 2565 (16 June 2022); A Mendes Da Costa, Member
MIGRATION – approval of a nomination – occupation of Cook – genuine position – nominee’s employment had ceased – updated financial information – discrepancies between organisational charts – wage and salaries expenditure – financial capacity to employ the nominee – decision under review affirmed

Coates (Migration) [2022] AATA 2588 (27 July 2022); M Bishop, Member
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information provided in second extension application – six months of specified work in regional area while holding first extension – verification checks – discretion to cancel visa – physical and mental health – COVID restrictions and concern for family and returning to home country – paid third party to complete and lodge application – unaware of contents of application – acknowledgment of responsibility – current work on major infrastructure project and employer’s interest in sponsoring him – relationship with visa holder from another country – hardship if visa cancelled – decision under review set aside

Mc Kenna Cronin (Migration) [2022] AATA 2582 (29 July 2022); M Bishop, Member
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – incorrect information provided in second extension application – six months of specified work in regional area while holding first extension – verification checks – discretion to cancel visa – paid third party to complete and lodge application – acknowledgement of responsibility – COVID restrictions and prevalence in home country – mental health and death of relative – no health reports provided – work on major infrastructure project – relationship with visa holder from another country – hardship if visa cancelled – decision under review affirmed

National Disability Insurance Scheme
HGLS and National Disability Insurance Agency [2022] AATA 2766 (27 July 2022); K Buxton, Senior Member
NATIONAL DISABILITY INSURANCE SCHEME – request for statement of reasons under s 38 AAT Act – whether the basis for the decision is adequate – request refused

HGLS and National Disability Insurance Agency [2022] AATA 2774 (25 August 2022); K Buxton, Senior Member
NATIONAL DISABILITY INSURANCE SCHEME – request for statement of reasons under s 28 AAT Act – whether the basis for the decision is adequate – request refused

Medovarski and National Disability Insurance Agency [2022] AATA 2737 (19 August 2022); K Parker, Senior Member
NATIONAL DISABILITY INSURANCE SCHEME – review of decision by NDIA not to grant the Applicant’s request to access the NDIS – whether Applicant meets access criteria – whether Applicant meets “disability requirements” or “early intervention requirements” under ss 24 and 25 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) respectively – Applicant has long-standing multimorbidity including morbid obesity, type 2 diabetes, osteoarthritis, obstructive sleep apnoea, vision problems, and other conditions – consideration of socioeconomic factors, personality traits and level of Applicant’s comprehension, when assessing history of non-compliance with treatment recommendations and whether appropriate evidence-based treatments are “available” to him – whether impairments are, or likely to be, permanent – whether Applicant’s permanent sensory impairment from problems with his vision has resulted in substantially reduced functional capacity in any one of the prescribed six activities in s 24(1)(c) of the NDIS Act – Decision Under Review affirmed – access to the NDIS not granted – non-binding observations made

VWBX and National Disability Insurance Agency [2022] AATA 2736 (19 August 2022); R Reitano, Member
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – whether Applicant meets NDIS access criteria – whether Applicant meets the disability or early intervention requirements – Child Applicant – whether impairments are permanent- whether impairment results in substantially reduced functional capacity – whether provision of early intervention supports is likely to reduce the Applicant’s future needs for supports in relation to disability Social Anxiety Disorder – Generalised Anxiety Disorder – Hypermobility Spectrum Disorder – Dysgraphia – Attention Deficit Hyperactivity Disorder – Early Intervention Supports – Specific Learning Disorder – decision under review affirmed

Practice and Procedure
Carroll and National Disability Insurance Agency [2022] AATA 2822 (29 August 2022); K Buxton, Senior Member
PRACTICE AND PROCEDURE – Jurisdiction – National Disability Insurance Scheme – Death of applicant – whether Tribunal has jurisdiction to review decision when applicant is deceased – application dismissed

CGXH and National Disability Insurance Agency [2022] AATA 2836 (30 August 2022); K Buxton, Senior Member
PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE AGENCY – summons – objection to inspection of summons documents – whether the documents produced under summons fall outside the scope of the summons request – whether the documents produced under summons are immaterial and irrelevant – Applicant’s objection upheld

Rogers and National Disability Insurance Agency [2022] AATA 2809 (26 August 2022); K Buxton, Senior Member
PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – where Applicant applied to Tribunal to review a decision to approve the statement of participant supports in the Applicant’s plan – where subsequent decisions made about participant supports – jurisdiction of the Tribunal – Tribunal has jurisdiction to consider whether Specialist Disability Accommodation should be specified as a reasonable and necessary support - Tribunal does not have jurisdiction to consider subsequent decisions made under section 33(2) of the NDIS Act

TQNC and National Disability Insurance Agency [2022] AATA 2735 (19 August 2022); P Smith, Member
PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – application for review – two decisions made by the Respondent – internal review decision made by a reviewer in respect of a decision to approve a statement of participants support in the Applicant’s Plan – no application for review made to the Tribunal within the prescribed time and no application for an extension of time made –  no internal review decision made by a reviewer in relation to a decision not to conduct an unscheduled review of the decision on the basis of a change to the Applicant’s circumstances – request to the Tribunal to give the Applicant written reasons for its decision to dismiss the application for review

Professions and Trades
Alan Gough and Vision Business Group Pty Ltd and Tax Practitioners Board [2022] AATA 2757 (23 August 2022); Dr L Kirk, Senior Member
TAX AGENTS – termination of registration as tax agent – whether individual applicant is a fit and proper person – good fame, integrity and character – where individual applicant is sole director of corporate applicant – where individual applicant has lodged income tax returns late or not at all – where corporate applicant has lodged income tax returns and BAS late or not at all – alleged breaches of Code of Professional Conduct – whether applicant has failed to comply with taxation laws in the conduct of his personal affairs – whether applicant failed to respond to direction of Board in timely manner – decision affirmed

Forever Family Day Care Pty Ltd and Secretary, Department of Education [2022] AATA 2755 (24 August 2022); B W Rayment OAM QC, Deputy President
CHILDCARE – Family assistance law – child care benefit – cancellation of approval as an approved child care service – breach of conditions of provider approval – overseas educators – children overseas – exceeding educator to child ratios – decisions affirmed – decision set aside and remitted

Refugee
1812585 (Refugee) [2022] AATA 2481 (27 May 2022); S Lee, Member
REFUGEE – protection visa – Iraq – a particular social group or groups – a single woman without male protection – single mothers, female academics and Sunni women in Iraq – membership of the same family unit as the first named applicant – decision under review remitted

1818991 (Refugee) [2022] AATA 2456 (3 June 2022); T Flood, Member
REFUGEE – protection visa – Ghana – member of a particular social group – homosexual man – pressure from family to marry – fear of harm from family of partner, who committed suicide, and people in community – credibility – consistent and plausible claims and evidence despite reticent presentation – no relationship and limited activity in Australia for personal reasons – country information – laws and societal attitudes – state protection not obtainable – treaty right to enter and stay in neighbouring countries limited in practice – decision under review remitted

1726249 (Refugee) [2022] AATA 2625 (9 June 2022); D McCulloch, Member
REFUGEE – protection visa – Sri Lanka – race – young man of Tamil ethnicity – fear of persecution by the Sri Lankan Army – young Tamil male with suspected LTTE associations – membership of the particular social groups – people who have fled Sri Lanka illegally – low-level involvement with the LTTE – failed asylum seeker returning from a western country – compassionate circumstances – Ministerial intervention requested – decision under review affirmed

2014139 (Refugee) [2022] AATA 2508 (15 June 2022); M Sripathy, Member
REFUGEE – cancellation – protection visa – Iran – Federal Court remittal – incorrect information provided in protection visa application – citizenship and fear of harm – not stateless but Iranian citizen – passports and voluntary returns after protection visa granted – late concession of non-compliance – wife and older child’s protection visas cancelled, with application for review in progress – younger child an Australian citizen – best interests of children as primary consideration – mental health – non-refoulement – protection finding not quashed or set aside – possibility of prolonged detention – decision made without hearing – decision under review set aside

2117946 (Refugee) [2022] AATA 2513 (15 June 2022); A Younes, Senior Member
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – convicted of an offence – contravening an Apprehended Violence Order (AVO) – stalk/intimidate – driving while licence application refused – consideration of discretion – compelling need to remain in Australia – Australia’s protection obligations – degree of hardship – successful rehabilitation – Convention on the Rights of the Child (CROC) – best interests of the child – decision under review set aside

2202501 (Refugee) [2022] AATA 2515 (16 June 2022); L Hardy, Member
REFUFEE – protection visa – Afghanistan – race – ethnic Tajik – imputed political opinion – links to the US military – particular social group – returnee from the West – attacks by extremist Islamic groups – fear of killing – fear of kidnapping – Taliban takeover of the country – hostilities with Tajik militias – state protection – decision under review remitted

1832430 (Refugee) [2022] AATA 2759 (21 June 2022); T Flood, Member
REFUGEE – protection visa – Ghana – political opinion – opposition to the Fulani – member of the New Patriotic Party (NPP) – activist and advocate against the presence and practices of the Fulani herdsmen – no past harm suffered – ongoing tensions between the Fulani and farmers in Ghana – right to enter and reside in a third country – ECOWAS (Economic Community of West African States) member state – decision under review remitted   

2202545 (Refugee) [2022] AATA 2531 (23 June 2022); M O'Loughlin, Member
REFUGEE – protection visa – Kenya – particular social group – bisexual – gay – LGBTQIA+ – fear of harm by community – applicant has never lived openly as gay or bisexual – applicant’s choice to practice bisexuality discreetly not based on fear of persecution – inconsistent evidence – decision under review affirmed

1931275 (Refugee) [2022] AATA 2662 (30 June 2022); A Murphy, Member
REFUGEE – protection visa – Pakistan – Federal Court remittal – religion – converting between religious sects – particular social group – women in Pakistan – fear attacks by family – fear of honour killing – mental health issues – gender-based violence – state protection – decision under review remitted

Social Services
Chandler and Secretary, Department of Social Services (Social services second review) [2022] AATA 2834 (31 August 2022); P Ranson, Member and L Benjamin, Member
SOCIAL SERVICES – debt – family tax benefit – overpayment of benefit – whether correct reporting – whether was overpaid – whether grounds for debt to be waived or written off – error in reporting by the applicant – was overpaid – no grounds – decision affirmed

Christoforou and Secretary, Department of Social Services (Social services second review) [2022] AATA 2837 (19 August 2022); D J Morris, Senior Member
PRACTICE AND PROCEDURE – application made on behalf of applicant by her representative – applicant dies after lodging application but before hearing – consideration of nature of decision – distinction between matter which extinguishes on death of an applicant and matter which may devolve – matter does not extinguish on death of applicant – potential relief or remedy available – proof of standing of affected party and fresh application required – information sought by Tribunal not provided – applicant’s representative unlikely now to proceed – provisions of AAT Act considered
SOCIAL SECURITY – where applicant was on carer payment and age pension – where applicant also in receipt of spouse benefit superannuation pension – where superannuation income not taken into account in calculating rate of payments – where debt arose – where steps taken to recover debt – where applicant sought review by authorised review officer – where applicant sought further review by Social Services and Child Support Division of Tribunal – where Tribunal affirmed authorised review officer’s decision – where applicant’s son sought review by General Division of Tribunal on behalf of applicant – where applicant died – where applicant’s son sought to continue the proceeding – standing as personal representative ceases on death of person represented – where executor of estate could be joined as affected party – where proof not provided that applicant’s son is executor of estate – where now likely applicant’s son cannot pursue matter – application dismissed as Tribunal satisfied decision not reviewable – written reasons provided

Grech and Secretary, Department of Social Services (Social services second review) [2022] AATA 2831 (31 August 2022); D Mitchell, Member
SOCIAL SECURITY – rate of age pension – where value of assets exceed minimum threshold – where Centrelink made an error in calculating rate of pension which was subsequently corrected – decision under review affirmed

Sim and Secretary, Department of Social Services (Social services second review) [2022] AATA 2807 (26 August 2022) Dr S Fenwick, Senior Member
SOCIAL SECURITY – disability support pension – member of a couple – reporting of spouse earnings – prior adjustment after long period of overpayment – decision affirmed

Superannuation
Signium Pty Limited and Commissioner of Taxation (Taxation) [2022] AATA 2824 (5 August 2022); B J McCabe, Deputy President
SUPERANNUATION guarantee charge assessments – penalty assessments – whether penalty assessments excessive – nominal interest of superannuation guarantee charge – superannuation shortfall assessments – decision under review varied

Taxation
Robis Consulting Pty Ltd and Commissioner of Taxation (Taxation) [2022] AATA 2832 (25 August 2022); R Olding, Senior Member
TAXATION – CASH FLOW BOOST – whether wages constructively paid – whether scheme for sole or dominant purpose of obtaining or increasing Cash Flow Boost – decision set aside

Trustee for The Lubiana Family Trust and Commissioner of Taxation (Taxation) [2022] AATA 2826 (30 August 2022); B J McCabe, Deputy President and R J Olding, Senior Member
TAXATION – WINE EQUALISATION TAX – where wine sold for single undissected amount – whether amounts said to be attributed to containers, delivery and “goodwill, reputation and romance” of ultra-premium wine products excluded from taxable value – held no exclusion of these amounts – 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	
McPartland and Commissioner of Taxation	[2022] AATA 686 	
Appeals finalised
CASE NAME	AAT reference	court Reference	
Ali v Minister for Immigration, Citizenship and Multicultural Affairs	[2020] AATA 5232	[2022] FCAFC 140
[2022] FCA 174	
Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs	[2020] AATA 367	[2022] FCAFC 134
[2021] FCA 1281	
El Khoueiry v Minister for Immigration, Citizenship and Multicultural Affairs	[2021] AATA 3577 	[2022] FCAFC 136
[2022] FCA 247	
Maryvan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs	[2021] AATA 2502 	[2022] FCA 977	
Ngata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs	[2021] AATA 376	[2022] FCAFC 139
[2021] FCA 906	
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs	[2022] AATA 378	[2022] FCA 976	
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor	[2020] AATA 2161	[2022] HCATrans 130
[2021] FCAFC 166
[2020] FCA 1810	
Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs	[2021] AATA 19	[2022] FCAFC 144
[2022] FCA 309	

Statements of Principles
This section of the Bulletin provides information on recent developments including the notification or completion of investigations in relation to Statements of Principles made by the Repatriation Medical Authority (RMA) for the purposes of section 120A(2) of the Veterans’ Entitlements Act 1986  (VEA) and section 338(2) of the Military Rehabilitation and Compensation Act 2004 (MRCA). These Acts require reference to be had to Statements of Principles made about particular conditions concerning injury, disease or death.
If the RMA gives notice that it intends to carry out an investigation in respect of a particular kind of condition, the Repatriation Commission cannot determine a claim made under the VEA about the incapacity or death of a person relating to that condition, until the RMA has determined a Statement of Principles or declares that it does not propose to determine a Statement of Principles about the condition.  Also during this period, claims under the MRCA cannot be determined, reconsidered or reviewed by either the Repatriation Commission, the Veterans’ Review Board or the AAT, until the RMA has determined a Statement of Principles about the condition concerned or declared it does not propose to do so.
Certain claims cannot succeed if the RMA has declared it does not propose to make a Statement of Principles in relation to the particular condition. 
Existing Statements of Principles are also reviewed, amended or revoked from time to time.
New Statements of Principles
The AAT has been advised that the RMA has made the following new Statements of Principles. These commence on 19 September 2022:

Creutzfeldt-Jakob disease (Balance of Probabilities) - No. 81 of 2022
https://www.legislation.gov.au/Details/F2022L01109
 
Creutzfeldt-Jakob disease (Reasonable Hypothesis) - No. 80 of 2022
https://www.legislation.gov.au/Details/F2022L01108
 
Epilepsy (Balance of Probabilities) - No. 85 of 2022
https://www.legislation.gov.au/Details/F2022L01133

Epilepsy (Reasonable Hypothesis) - No. 84 of 2022
https://www.legislation.gov.au/Details/F2022L01132

Malignant neoplasm of the anus and anal canal (Balance of Probabilities) - No. 83 of 2022
https://www.legislation.gov.au/Details/F2022L01127

Malignant neoplasm of the anus and anal canal (Reasonable Hypothesis) - No. 82 of 2022
https://www.legislation.gov.au/Details/F2022L01126

Mature B-cell lymphoid leukaemia and small lymphocytic lymphoma (Balance of Probabilities) - No. 79 of 2022
https://www.legislation.gov.au/Details/F2022L01117

Mature B-cell lymphoid leukaemia and small lymphocytic lymphoma (Reasonable Hypothesis) - No. 78 of 2022
https://www.legislation.gov.au/Details/F2022L01113

Steatohepatitis (Balance of Probabilities) - No. 87 of 2022
https://www.legislation.gov.au/Details/F2022L01121

Steatohepatitis (Reasonable Hypothesis) - No. 86 of 2022
https://www.legislation.gov.au/Details/F2022L01120

Amended Statements of Principles
The AAT has been advised that the RMA has made the following instruments amending the Statements of Principles for the specified conditions. These commence on 19 September 2022: 

Allergic contact dermatitis (Balance of Probabilities) - No. 89 of 2022
https://www.legislation.gov.au/Details/F2022L01114

Allergic contact dermatitis (Reasonable Hypothesis) - No. 88 of 2022
https://www.legislation.gov.au/Details/F2022L01112

Asthma (Balance of Probabilities) - No. 93 of 2022
https://www.legislation.gov.au/Details/F2022L01123

Asthma (Reasonable Hypothesis) - No. 92 of 2022
https://www.legislation.gov.au/Details/F2022L01122
Conjunctivitis (Balance of Probabilities) - No. 91 of 2022
https://www.legislation.gov.au/Details/F2022L01131

Conjunctivitis (Reasonable Hypothesis) - No. 90 of 2022
https://www.legislation.gov.au/Details/F2022L01130

Veterans' Entitlements (Statements of Principles—definition of "one pack-year") Amendment Determination 2022 - No. 94 of 2022
https://www.legislation.gov.au/Details/F2022L01128
This instrument amends the following Statements of Principles, to omit the definition of "pack-year" and substitute it with a new definition of "one pack-year":
•	Ankylosing spondylitis (Reasonable Hypothesis) - No. 39 of 2021
•	Ankylosing spondylitis (Balance of Probabilities) - No. 40 of 2021
•	Anosmia (Reasonable Hypothesis) - No. 19 of 2021
•	Anosmia (Balance of Probabilities) - No. 20 of 2021
•	Aortic aneurysm and aortic wall disorders (Reasonable Hypothesis) - No. 21 of 2021
•	Aortic aneurysm and aortic wall disorders (Balance of Probabilities) - No. 22 of 2021
•	Asthma (Reasonable Hypothesis)  - No. 31 of 2021
•	Asthma (Balance of Probabilities) - No. 32 of 2021
•	Carotid artery disease (Reasonable Hypothesis) - No. 54 of 2020
•	Carotid artery disease (Balance of Probabilities) - No. 55 of 2020
•	Chronic pancreatitis (Reasonable Hypothesis) - No. 64 of 2020
•	Chronic pancreatitis (Balance of Probabilities) - No. 65 of 2020
•	Deep vein thrombosis (Reasonable Hypothesis) - No. 35 of 2021
•	Deep vein thrombosis (Balance of Probabilities) - No. 36 of 2021
•	Diabetes mellitus (Reasonable Hypothesis) - No. 48 of 2020
•	Diabetes mellitus (Balance of Probabilities) - No. 49 of 2020
•	Giant cell arteritis (Reasonable Hypothesis) - No. 11 of 2021
•	Giant cell arteritis (Balance of Probabilities) - No. 12 of 2021
•	Inflammatory bowel disease (Reasonable Hypothesis) - No. 90 of 2020
•	Inflammatory bowel disease (Balance of Probabilities) - No. 91 of 2020
•	Malignant neoplasm of the cervix (Reasonable Hypothesis) - No. 80 of 2020
•	Malignant neoplasm of the cervix (Balance of Probabilities) - No. 81 of 2020
•	Malignant neoplasm of the kidney (Reasonable Hypothesis) - No. 41 of 2021
•	Malignant neoplasm of the kidney (Balance of Probabilities) - No. 42 of 2021
•	Non-aneurysmal aortic atherosclerotic disease (Reasonable Hypothesis) - No. 52 of 2020
•	Non-aneurysmal aortic atherosclerotic disease (Balance of Probabilities) - No. 53 of 2020
•	Peripheral artery disease (Reasonable Hypothesis) - No. 70 of 2020
•	Peripheral artery disease (Balance of Probabilities) - No. 71 of 2020
•	Psoriasis (Reasonable Hypothesis) - No. 13 of 2021
•	Psoriasis (Balance of Probabilities) - No. 14 of 2021
•	Pulmonary thromboembolism (Reasonable Hypothesis) - No. 37 of 2021
•	Pulmonary thromboembolism (Balance of Probabilities) - No. 38 of 2021
•	Renal artery atherosclerotic disease (Reasonable Hypothesis) - No. 56 of 2020
•	Renal artery atherosclerotic disease (Balance of Probabilities) - No. 57 of 2020
•	Retinal vascular occlusion (Reasonable Hypothesis) - No. 50 of 2020
•	Retinal vascular occlusion (Balance of Probabilities) - No. 51 of 2020
•	Tinnitus (Reasonable Hypothesis) - No. 84 of 2022

Statements of Principles to be revoked	
The AAT has been advised that the following Statements of Principles determined by the RMA will be repealed on 19 September 2022:

Creutzfeldt-Jakob disease - No. 77 of 2014 
https://www.legislation.gov.au/Details/F2014L01139

Creutzfeldt-Jakob disease - No. 76 of 2014 
https://www.legislation.gov.au/Details/F2014L01138

Epilepsy - No. 76 of 2013
https://www.legislation.gov.au/Details/F2013L01895

Epilepsy - No. 75 of 2013
https://www.legislation.gov.au/Details/F2013L01894

Malignant neoplasm of the anus and anal canal - No. 52 of 2013  
https://www.legislation.gov.au/Details/F2013L01639

Malignant neoplasm of the anus and anal canal - No. 51 of 2013
https://www.legislation.gov.au/Details/F2013L01638

Chronic lymphocytic leukaemia/small lymphocytic lymphoma - No. 85 of 2014 
https://www.legislation.gov.au/Details/F2014L01147

Chronic lymphocytic leukaemia and small lymphocytic lymphoma - No. 84 of 2014 
https://www.legislation.gov.au/Details/F2014L01146

Steatohepatitis - No. 80 of 2013 
https://www.legislation.gov.au/Details/F2013L01900

Steatohepatitis - No. 79 of 2013 
https://www.legislation.gov.au/Details/F2013L01898

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