June 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. Update on new review measures for small business taxpayersThe AAT launched a Small Business Taxation Division on 1 March 2019 and, in the first three months of operation, we received almost 70 applications for review under the new arrangements. We have been able to resolve some matters without the need for a hearing which, importantly, means there was a relatively quick outcome for the small business applicants involved. The processes we use in the new Division involves assessing cases early to identify the best way to deal with them. For example, we contact small businesses applying for a review to discuss their matter and make sure they have a firm understanding of the AAT process. This helps us clarify details about each application and identify key issues. Where the law allows us to, we use similar strategies in our other divisions. While establishing the new Division, we consulted with a number of stakeholders to seek feedback when developing a practice direction and guide. Deputy President Bernard McCabe, Head of the Small Business Taxation Division and the Taxation and Commercial Division, has continued to engage with stakeholders on the operations of the new Division and recently hosted a series of stakeholder information sessions in most capital cities. If you are interested in keeping up to date with the operations of the new Division, please review our published statistics within the Whole of Tribunal caseload report. Increase to application fees from 1 July 2019Most applications for review at the AAT attract a fee. We provide information about our fees by application type in the Apply for a review section of our website. Application fees are reviewed every year, taking into account a range of factors including the need to keep costs as low as possible. Following the latest review, the changes to application fees have been published on our website. Protection visasThis month, we focus on how the AAT reviews decisions about Protection visas. These reviews represent a significant part of our work. Based on figures for the current financial year to the end of May, about 16.6 per cent of all applications lodged at the AAT are for a review of a Protection visa decision. This does not included reviews conducted by the Immigration Assessment Authority (IAA), which is an independent authority within the AAT that conducts reviews of fast track reviewable decisions. The vast majority of these reviews are of decisions refusing to grant a Protection visa. The most common issue that the AAT needs to determine is whether Australia has obligations to protect the applicant. These obligations, addressed in the Migration Act 1958 (Migration Act), require Australia to protect people found to be refugees or, alternatively, those who meet the complementary protection criteria. The Migration Act defines a refugee as someone who has a ‘well-founded fear of persecution’ and this definition requires the decision maker to be satisfied of various requirements including that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Applicants found not to be refugees are assessed against the complementary protection criteria. This means a Protection visa may be granted where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk they will suffer 'significant harm'. However, there are certain circumstances, also listed in the Migration Act, where a person meets this criteria but does not qualify for a Protection visa. We have summarised three of our decisions in this area of work to illustrate how these requirements operate in real-life settings. Pseudonyms are used in published decisions about Protection visa reviews and certain details may be omitted to protect the identity of the applicants. 1614274 (Refugee) [2018] AATA 5642 The AAT affirmed the Department of Home Affairs’ decision to refuse to grant the applicants Protection visas. The applicants were a married couple from Fiji who claimed to fear harm from the Fijian government if they returned, primarily because of their anti-government opinions. 1618712 (Refugee) [2019] AATA 602 The AAT affirmed the Department of Immigration and Border Protection’s decision to refuse to grant the applicant a Protection visa. The applicant claimed to fear harm from the political party in power if he returned to Bangladesh because he was a supporter of an opposing political party. 1816669 (Refugee) [2019] AATA 795 The Department of Home Affairs refused to grant the applicants Protection visas. The applicants were a married couple from Iraq who stated that they feared Shia militia groups would harm them if they returned. The AAT remitted the decision to the Department for reconsideration finding the applicants met the refugee criterion for a Protection visa. 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. CompensationClaasz and Comcare (Compensation) [2019] AATA 800 This review concerned the amount of compensation Comcare was liable to pay the applicant. The applicant retired from work due to an injury and received a lump sum benefit under a superannuation scheme as a result of her retirement. The issue in this matter was the calculation of the weekly compensation payments from the superannuation scheme. MigrationMeda (Migration) [2019] AATA 1039 The AAT affirmed the Department of Home Affairs' decision to cancel the applicant’s Student visa. The applicant remained in Australia working part-time for 15 months after his University enrolment was cancelled. Offord (Migration) [2019] AATA 921 The Department of Immigration and Border Protection refused to grant the applicants Business Skills (Residence) visas. The issue before the AAT was the requirement that the applicants’ business and personal assets in Australia had certain net values. The AAT remitted the decision under review to the Department for reconsideration. Social services second reviewCordin and Secretary, Department of Social Services (Social services second review) [2019] AATA 887 This review concerned overpayments made to the applicant in circumstances where he was unrightfully receiving the family tax benefit and parenting payments. The primary issue was whether the debt should be written off. The AAT affirmed the Department’s decision regarding the amount of overpayments the applicant was liable for. TaxationHourigan and Commissioner of Taxation (Taxation) [2019] AATA 558 This review concerned amended tax assessments issued to the applicant increasing his tax liability. The primary issue concerned the calculation of penalties arising from the applicant’s conduct in relation to his incorrect tax returns, specifically administrative penalties and shortfall interest charges. 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. |