AAT Decisions
Recent decisions
The following Administrative Appeals Tribunal Reasons for Decisions
have been recently handed down. Links to the full text of the
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Corporations | Immigration and Citizenship | Social Security | Taxation | Veterans' Affairs
Corporations
The Financial Adviser and Australian and Securities and Investments Commission
[2008] AATA 1164; 23/12/2008; Justice Downes, President, The Hon RJ Groom, Deputy President, Senior Member AF Cunningham
CORPORATIONS - banning order - power to make banning order - meaning of "convicted of fraud" - definition of "serious fraud" affects meaning - conviction under s 64(1)(b) of the Australian Securities and Investments Commission Act 2001 (Cth) amounts to "conviction of fraud" under s 920A of the Corporations Act 2001 (Cth).
Held:
- The decision under review is affirmed.
- The confidentiality order made on 4 September 2008 is varied by:
1. Substituting "30 January 2009" for "further order".
2. Substituting "as the Financial Adviser" for "by the letters PYVM" in paragraph 1.
3. Adding as paragraph 5:
"5. Nothing in these orders precludes the Tribunal from publishing its reasons for decision."
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Immigration and Citizenship
Kushner and Minister for Immigration and Citizenship
[2008] AATA 1170; 24/12/2008; Senior Member J Kelly
MIGRATION - Business skills visa - Cancellation - Whether material after cancellation can be taken into account - Whether business - Whether eligible business - Whether genuine effort to obtain substantial ownership interest in an eligible business or intention to - Activities to achieve migration outcome - Held not a business - Not an eligible business - No genuine efforts - Residual discretion not exercised - Decision affirmed
Held: The decision under review is affirmed.
Yang and Ors and Minister for Immigration and Citizenship
[2008] AATA 1171; 24/12/2008; Mr S Webb, Member
IMMIGRATION - business skills visa - substantial ownership - business not recurrent and continuous activity for profit in Australia - minimal participation in the day-to-day management of business - efforts not 'genuine effort' - residual discretion - reasonable explanation for delay - litigation and frozen assets - genuine intention - decision set aside - secondary visa cancellations set aside
Held: The decisions under review are set aside and in place thereof the Tribunal decides that the visas of Yang Tianding, Li Min'e, Yang Xiaohong, Yang Shaodong and Yang Dongfa are reinstated.
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Social Security
Clancey and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 1169; 24/12/2008; Senior Member S Karas AO
SOCIAL SECURITY - Newstart participation failure - failure to comply with the terms of an Activity Agreement - no reasonable excuse - decision under review affirmed
Held: The Tribunal affirms the decision under review.
Odeh and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 3, 6/1/2008; Dr M Denovan, Member
SOCIAL SECURITY - benefits and entitlements - newstart allowance - whether applicant committed newstart participation failures - if so, whether applicant has a reasonable excuse - decision under review affirmed
Held: The Tribunal affirms the decisions under review.
Rigney and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 1172; 15/10/2008; Senior Member L Hastwell
SOCIAL SECURITY - pensions, benefits and allowances - Carer Allowance for a disabled child - disabilities of asthma, multiple allergies, fructose malabsorption and migraine headaches - insufficient score under Child Disability Assessment Tool - no discretion to grant Carer Allowance in the circumstances - decision affirmed
Held: For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision under review.
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Taxation
Estate of Mr Cawthen (Deceased) and Commissioner of Taxation
[2008] AATA 1168; 24/12/2008; Senior Member RW Dunne
TAXATION - capital gains tax - family company purchased dwelling and adjacent land - husband and wife shareholders - granted licence or right to occupy dwelling as main residence - following death of husband and liquidation of company, trustees of husband's estate disposed of interest in dwelling and land - request for private binding ruling - capital gain not disregarded - decision on objection affirmed
Held: The Tribunal affirms the objection decision under review.
Port of Portland Pty Ltd and Commissioner of Taxation
[2008] AATA 1162; 23/12/2008; Justice Downes, President, Deputy President GL McDonald
TAXATION - income tax - depreciation of assets - breakwaters and groyne - application of former Division 42 of the Income Tax Assessment Act 1997 (Cth) - "plant" - common law meaning of "plant" - breakwaters a means by which taxpayer carries on business - not setting of business - breakwaters are plant - groyne is not
Held: The matter is adjourned to a date to be fixed.
Touram Pty Ltd ATF the GKA Family Trust and Commissioner of Taxation
[2008] AATA 1167; 23/12/2008; Senior Member BJ McCabe
TAXATION - Goods and services tax - Entitlement to input tax credit - Taxable supply - Sale of land - Whether supply of land made in the furtherance of an enterprise being carried on by the supplier - Enterprise being carried on in the form of a business - Objection decision under review set aside and substituted
Held: The Tribunal:
- sets aside the objection decision under review; and
- substitutes the decision that the vendor of the property made a taxable supply of land to the taxpayer on 18 May 2006.
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Veterans' Affairs
Pye and Repatriation Commission
[2008] AATA 1165; 23/12/2008; Senior Member J Kelly, Dr MEC Thorpe, Member
VETERANS' AFFAIRS - War pension - Application for increase to special rate - Claim accepted - Conditions rejected as war-caused for Internal Derangement of the Left Knee and Bilateral Trochanteric Bursitis - Pension reduced to general rate - Remunerative work - Whether war-caused conditions the only factor preventing from undertaking remunerative work - Whether ceased work for reasons other than accepted conditions - Held war-caused conditions only factor - Did not cease work for reasons other than accepted conditions - Decision affirmed
Held: The reviewable decision is set aside and substituted for that decision is the decision that Mr Pye is entitled to the special rate of pension with effect from 14 November 2005.
Scott and Repatriation Commission
[2009] AATA 1; 5/1/2008; Senior Member GD Friedman
VETERANS' AFFAIRS - veterans' entitlements - generalised anxiety disorder - alcohol dependence - depressive disorder - whether conditions war-caused
Held: The Tribunal sets aside the decision under review and substitutes a decision that generalised anxiety disorder, alcohol dependence and depressive disorder are war-caused with effect from 2 June 2005.
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