September  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. 

Events for migration and refugee sector professionals

The AAT is currently seeking expressions of interest for stakeholder forums being planned at our Adelaide, Brisbane, Melbourne, Perth and Sydney registries. The forums will be particularly relevant to professionals who provide legal or advocacy support for clients with visa appeal matters.

Find out more on our website, including how to register your interest in participating in one of these forums.

Accessing information

Right to Know Day recognises the fundamental right of all citizens to access government information. In Australia, the Freedom of Information Act 1982 (FOI Act) is intended to promote democracy by increasing scrutiny and review of government activities and public participation in government processes.

The AAT is committed to promoting and facilitating access to information held by it in accordance with the FOI Act.

Freedom of Information

The fundamental premise of the Freedom of Information Act 1982 (FOI Act) is that people should have access to government records and information, and in particular, their own personal information held by government.

The AAT can review decisions made under the FOI Act by other agencies. Under section 57A of the FOI Act, the AAT can review:

• a decision of the Australian Information Commissioner on review to affirm, vary or set aside an agency’s or Minister’s decision (section 55K of the FOI Act); and
• a decision of an agency or Minister which the Australian Information Commissioner has decided not to review because it is a matter which should be considered by the AAT (section 54W(b) of the FOI Act).

In these reviews, the Tribunal usually examines whether or not the agency involved should release the requested material. See below for examples of summaries of decisions relating to the FOI Act.

For more information about the review of FOI decisions refer to our Freedom of Information Practice Direction.

Grass and Secretary, Department of Home Affairs (Freedom of information) [2019] AATA 1415

In this decision issues of official records family recollections and medical evidence were discussed. The key question for the AAT to answer was whether the information about the applicant’s birth date was “incomplete, incorrect, out of date or misleading”. The AAT needed to determine if there was sufficient evidence of the applicant’s birth date and the authenticity of documents produced.

VFRG and Australian Information Commissioner (Freedom of information) [2019] AATA 965

The applicant made privacy complaints to a number of Commonwealth agencies. He was seeking access to several documents held by the Office of the Australian Information Commissioner in relation to these complaints. The key issue in this matter was whether or not the documents were conditionally exempt because their disclosure would impact on the proper and efficient conduct of an agency.

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.

 General Division       

Stirling Skills Training (Inc) and Australian Skills Quality Authority [2019] AATA 1721

Following an audit which found the applicant to be non-compliant with certain requirements of the legislation, the Chief Commissioner of the Australian Skills Quality Authority [2019] AATA 1721 cancelled the applicant’s registration. The AAT acknowledged the respondent’s claims of the applicant’s history of non-compliance but found there was evidence the applicant was taking genuine steps to address the non-compliance. The AAT was satisfied that, taking into account the interests of all of the persons who may be affected, it was appropriate for the existing stay order to remain in place until the Tribunal makes a further order.

Migration and Refugee

1608377 (Refugee) [2019] AATA 1115

In this decision the AAT assessed whether the applicant met the refugee criterion or came within Australia’s complementary protection obligations. The applicant argued that because he feared harm from Egyptian authorities, nowhere was safe for him if he returned. The AAT found the applicant applied for a protection visa because he wanted to remain in Australia with his wife.

Choo (Migration) [2019] AATA 1556

In its review, the AAT was concerned that the applicant was seeking a further student visa in order to maintain residence in Australia. In making a decision the AAT also placed weight on the fact that the applicant had previously applied for a Residence visa, with intent to reside in Australia permanently, and was not satisfied that his intention had changed.

Samuel (Migration) [2019] AATA 1079

In order to be eligible for a Skilled Independent (Permanent) visa the applicant is given a score based on how well the applicant meets certain prescribed attributes. The AAT assessed the applicant against the points criteria which considers factors including; age, English language qualifications, overseas employment experience, Australian employment experience, education, and partner skill qualification.

National Disability Insurance Scheme

Howard and National Disability Insurance Agency [2019] AATA 2

In order to receive funding from the National Disability Insurance Agency (NDIA), an applicant must demonstrate how they meet the “access criteria”. These criteria are designed to impose a number of thresholds on access to the National Disability Insurance Scheme (NDIS). When considering the other access criteria, the AAT found the applicant’s psychological condition did not have a substantial impact on his functional capacity. He still maintained a circle of family friends and attended church and the gym. The AAT affirmed the decision not to grant the applicant access to the NDIS.

Taxation and Commercial

Decorative Imaging Pty Limited and Australian Securities and Investment Commission [2018] AATA 4668

In this case, the applicant lodged two proposed business names with ASIC’s online lodgement service. ASIC refused to register both names on the grounds that they were both considered to be identical or nearly identical to other registered names. The AAT had to determine if there was discretion for a human decision maker to intervene and apply common sense principles to whether the proposed business name is identical to another.

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.