April 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. 

Eleven law schools set to compete

The AAT’s 2019 annual Negotiating Outcomes on Time (NOOT) competition kicks off in the coming days. With 11 teams signing up from Western Australia, Queensland and South Australia, more than 31 law students will take part in the competition, which tests their negotiation skills using the AAT’s Alternative Dispute Resolution (ADR) model.

As the name suggests, ADR is about using different methods to resolve or narrow disputes prior to a hearing before a member. It generally involves an informal, private meeting where parties to a dispute try to reach agreement. We use a range of ADR processes in our General and Other Divisions, and resolve around 80% of matters in these divisions without the need for a hearing.

The NOOT is an opportunity for students to acquire practical experience in ADR and to test their skills before experienced ADR practitioners and members. Over the coming weeks, law school teams will negotiate with each other based on hypothetical scenarios with their performance judged according to criteria set by the AAT. After a number of rounds, the four highest scoring teams will progress to the finals, held on 31 May 2019.

The finals day will be open to the public.

Read more about the NOOT competition, now in its sixth year, and the AAT’s ADR processes.

Employer nomination/sponsorship and relevant business visas

In this edition, we focus on how the AAT reviews visa decisions involving people who want to work in Australia or businesses who want to employ migrants. These types of visa decision reviews make up a significant portion of our overall caseload. In this financial year to 31 March 2019, we received 8,438 applications for review of these decisions, representing 19% of the AAT’s overall caseload.

The most common types of decisions the AAT reviews in these case categories are:

• decisions refusing to approve an employer’s application to be a sponsor, prior to them being able to nominate an individual
• decisions refusing to approve an employer’s nomination of a migrant to fill a particular position
• decisions refusing to grant a migrant’s visa application for the nominated position

When reviewing these decisions the AAT must consider whether the applicant has met certain requirements. The requirements are numerous and depend on the type of review. We have summarised three of our recent decisions of these types to highlight common issues and to show how the AAT makes decisions in these cases.

CHOI (Migration) [2019] AATA 275

The AAT affirmed the Department of Home Affairs’ decision to refuse to grant the applicant an Employer Nomination (Permanent) Subclass 186 visa. The primary issue was whether the applicant satisfied the requirement to have vocational English. 

KRISHNA KANT PTY LTD ATF THE TRUSTEE FOR THE DNP TRUST (Migration) [2019] AATA 304

The AAT set aside the Department of Immigration and Border Protection's decision to refuse approval of the applicant's nomination of a Café or Restaurant Manager position for one of their restaurants. The AAT found the applicant satisfied all the requirements for approval of the nomination. 

V D NGUYEN & T T HOANG (Migration) [2019] AATA 293

The AAT affirmed the Department of Immigration and Border Protection's decision to refuse approval of the applicant's nomination of a baker for a subclass 457 visa. The primary issue was about the requirement that the terms and conditions of employment of a nominee are no less favourable than those that are, or would be, provided to an equivalent Australian citizen worker. 

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 support

Ashurst and Robertson (Child support) [2019] AATA 377

This review concerned the collection of unpaid child support payments from the respondent for a three month period. The respondent claimed the payments he made during the period were in advance, while the applicant claimed they were made in arrears.  

Compensation

Barthel and Australian National University (Compensation) [2019] AATA 548

This review was about a Comcare decision finding  the applicant was no longer entitled to compensation. The applicant applied to the AAT for a review of the decision and the respondent requested dismissal of the application. The main issue before the AAT was whether there was no reasonable prospect that the application would be successful. 

General

McLeod and Queensland Building and Construction Commission [2019] AATA 143

This review was about a request for a building license where the applicant had similar licenses in other jurisdictions. The applicant requested approval of a Queensland License based on mutual recognition of his existing licenses. The AAT varied the decision granting the license with conditions. 

Refugee

1730528 (Refugee) [2019] AATA 157

The AAT affirmed the Department of Home Affairs' decision to cancel the applicant’s Protection visa finding the applicant provided incorrect information in her application for the visa. The AAT held serious concerns about the credibility of the applicant's claims. 

Taxation

McKenzie and Commissioner of Taxation (Taxation) [2019] AATA 77

The applicant in this matter claimed certain relocation expenses were tax deductible because they were work related. The AAT affirmed the Commissioner of Taxation's decision disallowing the tax deduction. The AAT discussed the relationship required between the expenses and employment to result in tax deductibility. 

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.