May 2019 The Review includes news about the AAT and summaries of a selection of our published decisions. Previous issues of The Review are available on our website. What’s the difference between the courts and the AAT?An AAT hearing room For many people, the difference between the AAT and a court may not be clear, probably because both the courts and the AAT are able to review decisions made by government departments. In fact, the two work very differently and exist for different purposes. The difference is best illustrated by looking at the way each body reviews matters. The AAT does not review the original decision and consider whether the original decision maker made a mistake. Rather, it makes a completely new decision by taking a fresh look at all the facts, including any new information, and the law to reach its own view about what is the correct outcome in the particular case. This is called merits review. In carrying out this function the AAT not only offers applicants the opportunity to have a fresh decision made about matters affecting them, it also contributes to broader goals of maintaining high quality government decision-making and accountability. Once the AAT has considered a matter it may affirm a decision (decide not to change it), vary a decision, set aside a decision and substitute a new decision, or remit (send back) a decision to the decision-maker for reconsideration. Parties to an AAT review may appeal to the courts for a review of the AAT’s decision. The courts, unlike the AAT, review decisions to check whether they have been correctly made under the law. The courts’ focus is not on the outcome, but on whether the law was applied correctly in reaching the decision under review. This is called judicial review. If the court finds the decision was not legally correct, they will usually send the decision back (or remit it) to the AAT to make the decision again in a way that is legally correct. This does not necessarily mean the outcome will change. If the court finds that the decision was legally correct, it will usually dismiss the application for judicial review. Read more about the AAT’s role, power and jurisdiction. National Disability Insurance SchemeIn this edition, we focus on how the AAT reviews decisions made by the National Disability Insurance Agency. This is a growing part of our caseload but it still occupies a small proportion overall, making up 1.4 per cent of all applications to the AAT in the 2017-18 financial year. Unlike most of our areas of practice, the majority of AAT reviews of National Disability Insurance Scheme (NDIS) matters are finalised without the need for a hearing. This is as a result of a case management approach which encourages parties to attempt to negotiate an agreement prior to a hearing. When a matter needs to be finalised by way of a hearing, the most common issues for determination are:
We have summarised three of our recent decisions of NDIS matters to highlight these issues and to show how the AAT makes decisions in these cases. Allen and National Disability Insurance Agency [2018] AATA 3851 This review looked at the criteria for access to the NDIS, particularly the ‘disability requirements’ and the ‘early intervention requirements'. Mazy and National Disability Insurance Agency [2018] AATA 3099 This review was about an NDIA decision refusing the applicant’s request for additional supports in their existing NDIS plan. The issue in this matter was about the requirement that additional supports are 'reasonable and necessary'. McFarlane and National Disability Insurance Agency [2018] AATA 4727 In this matter, the NDIS decided the applicant did not meet the requirements for access to the NDIS. On review before the AAT, the main issue was about the requirement that the applicant's impairment is, or is likely to be, permanent, within the meaning of the rules of the NDIS. Our staff produce decision summaries for a selection of AAT decisions that have been published in full on the AustLII website. We use these summaries to offer an insight into our decision-making processes and to demonstrate the diversity of our work. For the complete facts and reasons, please view the full written decisions on AustLII. View our recent decision summaries below. Child supportGilbert and Bako (Child support) [2019] AATA 692 This review was about the calculation of the amount of child support payable by one parent to another. The calculation takes into account the adjusted taxable income of the party making payments, in this matter the applicant, and this review concerned the amount that should be included in the calculation where there was no adjusted taxable income available. Migration and Refugee1835826 (Refugee) [2019] AATA 354 The AAT affirmed the Department of Home Affairs' decision to refuse to grant the applicant a Protection visa. The applicant feared she would be harmed if she returned to Cambodia but the AAT was not satisfied that she met the requirements for the visa after having regard to relevant country information. Darwish (Migration) [2019] AATA 625 The Department of Home Affairs cancelled the applicant’s Partner visa because they were not satisfied as to his identity. The AAT affirmed the decision finding there were a number of concerns surrounding the applicant's identity. Ju (Migration) [2019] AATA 652 The Department of Home Affairs cancelled the applicant’s Student visa because they were satisfied the applicant was not, or was likely not to be, a genuine student. The AAT was not satisfied the applicant was not a genuine student and set aside the decision, substituting a decision not to cancel the visa. Tommi (Migration) [2019] AATA 355 The AAT affirmed the Department of Immigration and Border Protection's decision to refuse to grant the applicant a Student visa. The AAT was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Veteran's entitlementsSisley and Repatriation Commission (Veterans' entitlements) [2018] AATA 4078 The applicant in this matter was a member of the Australian Army and the Army Reserves and had a number of war-caused conditions for which he was receiving the disability pension. The applicant requested an increase in his pension to the intermediate or special rate and this review was about the requirements he must satisfy for the increase, particularly what's called the 'alone test'. 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 a sample of decisions recently published in the AAT’s Migration & Refugee Division and Social Services & Child Support Division. What do you think? Write to us at Communications@aat.gov.au to provide editorial suggestions and feedback. |