May 2021 The Review includes news about the Administrative Appeals Tribunal (AAT) and summaries of a selection of published decisions. This month we take a look at the The differences between the AAT and the Australian courts and launch our annual user-feedback survey. Previous issues of The Review are available on our website. Have your say!The AAT’s annual user feedback survey is underway. Parties and representatives who were involved in a case finalised between 1 December 2020 and 31 March 2021 have been invited via email or SMS to complete a voluntary, anonymous survey. If you received an email or SMS from our research provider, we encourage you to consider having your say about your experience with the AAT. You can help identify where the AAT can make improvements to the way we operate and the services we provide. If you received a link on behalf of someone else, please forward it to them as soon as possible. Please visit our website for further information. What’s the difference between the courts and the AAT?While both the Australian courts and the AAT review administrative decisions made by government bodies, the two entities exist to serve different purposes and operate differently to each other. The AAT and merits review The AAT does not 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. The courts and judicial review The courts may review AAT decisions to decide whether they have been correctly made under the law. Their 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 may set aside the AAT decision and send it back (to remit it) to the AAT for reconsideration and to make the decision again in a way that is legally correct. However, this does not necessarily mean the AAT outcome will be different. If the court finds that the decision was legally correct, it will dismiss the application for judicial review. Read more about our role, powers and jurisdiction. Disability Support Pension — Impairment TablesThe AAT assesses an applicant’s level of impairment using the Impairment Tables contained within the Social Security Act 1991. These tables are used to:
The impairment rating enables the AAT Member to assess if the applicant meets the general medical rules for the Disability Support Pension (DSP). To meet these rules, the applicant needs to have either:
If the assessment results in a total impairment rating of less than 20 points, the applicant will not be eligible for the DSP. However, if the assessment results in a total impairment rating of 20 points or more, the AAT Member can then assess the applicant’s ability to work. Below are some examples of recent AAT decisions where the Member has reviewed the assessment of the impairment rating and how this ultimately affects whether the applicant will receive the DSP: Whitby (Social services second review) [2021] AATA 170This review was about the applicant’s entitlement to the DSP for medical conditions related to his spine. The issue in this matter was whether the applicant attracted the required 20 impairment points to qualify for the payment. Cocks (Social services second review) [2021] AATA 207The applicant in this case was seeking the DSP. The AAT had to establish whether the applicant’s impairments were diagnosed, treated and/or stabilised, and then determine whether they were permanent. Decision summaries are available 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. For the complete facts and reasons, please view the full written decisions on AustLII. View our recent decision summaries below. 1935570 (Refugee) [2021] AATA 804Will the AAT be satisfied the applicant was a genuine refugee and owed protection by Australia or is there a real risk of significant harm if he was returned to China. 1727969 (Refugee) [2021] AATA 1021The AAT looks closely into an applicant’s claim that his life is in danger if he is returned back to his home country due to religious persecution. 1700623 (Refugee) [2021] AATA 918This applicant claims she fears reprisals for falling in love against her family’s wishes. Will the AAT be satisfied that she is at risk of serious harm if returned to India? Freedom of InformationPlowman and ASIC FOI [2020] AATA 4729Was the agency correct to partially withhold documents from this applicant? The documents related to a complaint made by an agency staff member alleging that the applicant was guilty of bullying and harassment. 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. |