ADMINISTRATIVE APPEALS REPORTS

Transcription

1 OCTOBER 2013 Reports of the Administrative Appeals Tribunal and Administrative Appeals Tribunal decisions on appeal in the Federal Court and High Court ADMINISTRATIVE APPEALS REPORTS 2013 EDITOR KIM ROSS SENIOR REPORTERS DR RJ DESNIATIK SHARON HANSTEIN REPORTERS CHRISTOPHER PEARCE GRAHAM RAFFELL PRODUCTION EDITOR JACQUELINE DE LACY VOL 60 PART 5 PAGES

2 The mode of citation of this part will be: 60 AAR TABLE OF CASES REPORTED Part 5 Pages Accord Australasia Limited and Director, National Industrial Chemicals Notification & Assessment Scheme, Re (Cth AAT) Administrative Appeals Tribunal; Minister for Immigration and Citizenship v (Fed Ct of Aust) Australian Pesticides and Veterinary Medicines Authority; Re World Wide Fund for Nature and (Cth AAT) Australian Postal Corporation; Re Mackay and (Cth AAT) Australian Securities and Investments Commission; Re Gillespie and (Cth AAT)... 1 Australian Securities and Investments Commission; Re Liu and (Cth AAT)... 5 BQL and Commissioner of Taxation, Re (Cth AAT) Chadwick and Minister for Immigration and Citizenship, Re (Cth AAT) Comcare v Martinez (No 2) (Fed Ct of Aust) Comcare; Re Meaney and (Cth AAT) Comcare; Smith v (Fed Ct of Aust) Secretary, Department of Families; Re Stewart and (Cth AAT) Secretary, Department of; Re Lemon and (Cth AAT) Secretary, Department of; Re Westbrook and (Cth AAT) FTZK v Minister for Immigration and Citizenship (Fed Ct of Aust) Gillespie and Australian Securities and Investments Commission, Re (Cth AAT)... 1 Healy and Commissioner of Taxation, Re (Cth AAT) Heaney and Commissioner of Taxation, Re (Cth AAT) (Cases in bold reported in this part) ISSN X

3 TABLE OF CASES REPORTED Immigration and Citizenship, Minister for; FTZK v (Fed Ct of Aust) Immigration and Citizenship, Minister for; Re Chadwick and (Cth AAT) Immigration and Citizenship, Minister for; Re Nguyen and (Cth AAT) Immigration and Citizenship, Minister for; Re Xin Liang and (Cth AAT) Immigration and Citizenship, Minister for; Uelese v (Fed Ct of Aust) Kuan and Tax Practitioners Board, Re (Cth AAT) Lemon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re (Cth AAT) Liu and Australian Securities and Investments Commission, Re (Cth AAT)... 5 Mackay and Australian Postal Corporation, Re (Cth AAT) Martinez (No 2); Comcare v (Fed Ct of Aust) Meaney and Comcare, Re (Cth AAT) Minister for Immigration and Citizenship v Administrative Appeals Tribunal (Fed Ct of Aust) National Industrial Chemicals Notification &Assessment Scheme, Director; Re Accord Australasia Limited and (Cth AAT) Nguyen and Minister for Immigration and Citizenship, Re (Cth AAT) Oldmeadow v Repatriation Commission (Fed Ct of Aust) Pham; Commissioner of Taxation v (Fed Ct of Aust) Repatriation Commission; Oldmeadow v (Fed Ct of Aust) Sanctuary Australasia Pty Ltd and Commissioner of Taxation, Re (Cth AAT) Security, Director-General of and Minister for Foreign Affairs; Re TCXG and (Cth AAT) Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re (Cth AAT) Tax Practitioners Board; Re Kuan and (Cth AAT) Taxation, Commissioner of v Pham (Fed Ct of Aust) Taxation, Commissioner of; Re BQL and (Cth AAT) Taxation, Commissioner of; Re Healy and (Cth AAT) Taxation, Commissioner of; Re Heaney and (Cth AAT) Taxation, Commissioner of; Re Sanctuary Australasia Pty Ltd and (Cth AAT) TCXG and Director-General of Security and Minister for Foreign Affairs, Re (Cth AAT) Uelese v Minister for Immigration and Citizenship (Fed Ct of Aust) Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re (Cth AAT) World Wide Fund for Nature and Australian Pesticides and Veterinary Medicines Authority, Re (Cth AAT) Xin Liang and Minister for Immigration and Citizenship, Re (Cth AAT) (Cases in bold reported in this part)

4 INDEX Part 5 Pages ADMINISTRATIVE APPEALS TRIBUNAL Appeal from Commonwealth Employees Compensation Where Tribunal made finding as to when injury sustained Where Tribunal subsequently found that employment did not materially contribute to employee s condition Whether Tribunal made error of law Whether error of law may have affected Tribunal s conclusions Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 7, 14. Practice Application for extension of time to review decision Discretion Factors to be considered Whether applicant has given a reasonable explanation for delay Whether applicant made the respondent aware that the finality of the decision was being contested Prejudice to the respondent The substantive merit of the application Application refused Administrative Appeals Tribunal Act 1975 (Cth), ss 29(2), 29(7). Re Accord Australasia Limited and Director, National Industrial Chemicals Notification & Assessment Scheme (Cth AAT) Practice ASIO Adverse security assessment by Application for review Open findings Whether to publish Administrative Appeals Tribunal Act 1975 (Cth), ss 35AA, 35AA(d), 39A, 43AA, 43AA(4), 43AA(5), 43AA(6), 66A Australian Security Intelligence Organisation Act 1979 (Cth), ss 17(1)(c), 17(1)(ca), 18(2), 37(1), 38, 81, 81(1). Re TCXG and Director-General of Security and Minister for Foreign Affairs (Cth AAT) Practice Bias Apprehension of Whether prejudgment Where member had decided previous application concerning similar facts and issues Where member had made findings in previous proceeding about credibility of witness in present proceeding Whether apprehension of bias arose Special sensitivity in relation to credibility findings. Re BQL and Commissioner of Taxation (Cth AAT) Practice Matter remitted to Tribunal for reconsideration according to law Determination of constitution of Tribunal Presumption of retention of originally constituted Tribunal unless otherwise preferable Determination of question of actual or apprehended bias Relevant principles Tribunal s failure to set out chain of reasoning Not usually indicative of partiality Hearing of remitted matter Whether limitations on hearing Guidelines for Constituting the Tribunal 2011, cll (iii), (v). Re Meaney and Comcare (Cth AAT) Practice Withdrawal and dismissal Reinstatement Application for Whether dismissal in error Administrative Appeals Tribunal Act 1975 (Cth), ss 42A, 42A(10). Re Mackay and Australian Postal Corporation (Cth AAT) Procedural fairness Whether actual or apprehended bias Relevant principles Failure to set out chain of reasoning Whether indicative of bias Whether constituted of Tribunal on rehearing should be changed. Re Meaney and Comcare (Cth AAT)

5 INDEX ADMINISTRATIVE APPEALS TRIBUNAL APPEAL FROM Matter remitted to Tribunal Tribunal s decision to cancel visa on character grounds Criminal record Direction No 41 Visa refusal and cancellation under s 501 Jurisdictional error Irrelevant considerations Prospective assistance to law enforcement authorities Migration Act 1958 (Cth), ss 501(2), 501(6) Administrative Appeals Tribunal Act 1975 (Cth), s 43. Minister for Immigration and Citizenship v Administrative Appeals Tribunal (Fed Ct of Aust) COMMONWEALTH EMPLOYEES COMPENSATION Review Finding made by Administrative Appeals Tribunal as to when injury sustained Subsequent finding that employment did not materially contribute to employee s condition Whether Tribunal made error of law Whether error of law may have affected Tribunal s conclusions Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 7, 14. FEDERAL COURT Practice Single Judge Obiter dictum Administrative Appeals Tribunal Whether to follow. Re TCXG and Director-General of Security and Minister for Foreign Affairs (Cth AAT)