March 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 is a practice direction?
The AAT has released a new practice direction and guide for the newly established Small Business Taxation Division. You might ask, what exactly is a practice direction and why does the AAT produce them?
Most courts and tribunals issue practice directions. Practice directions guide parties to an AAT review through the procedures they must follow and how the AAT organises its business. For example, practice directions may describe how an area of the AAT will deal with certain types of applications and explain practical matters such as how and when documents must be given to the AAT. If there are procedures a party must follow to progress their application that are not set out in an Act or regulation, these are usually found in practice directions.
The President of the AAT issues practice directions under section 18B of the Administrative Appeals Tribunal Act 1975.
You can find the full list of the AAT’s current practice directions on our website including a short description of the purpose of each direction.
Updated guidelines related to the ‘character test’
The Minister for Immigration, Citizenship and Multicultural Affairs, the Hon David Coleman MP has issued a new Ministerial Direction. Known as Ministerial Direction no.79, it will guide the AAT when reviewing decisions to refuse or cancel a visa where the applicant has failed the character test. The new Direction replaced Ministerial Direction 65 from 28 February 2019 and aims to strengthen the focus on violent crimes against women and children.
Australian citizenship
In focus is a new feature of The Review. Each month, we will choose a particular area of the AAT’s diverse work to illustrate the types of reviews we conduct, how we make our decisions and what we must consider. We will discuss some features of the area ‘in focus’ and present summaries of some decisions in this type of case. We will continue to provide some summaries of other types of cases.
In this edition, we are focusing on how the AAT reviews Australian citizenship decisions.
People can ask the AAT to review certain decisions made by the Department of Home Affairs relating to Australian citizenship. These decisions are often refusals to grant citizenship but also include decisions revoking Australian citizenship. The most common reasons applications for citizenship are refused are a failure to:
- meet a general residence requirement
- pass a character test
- satisfy the department of the applicant’s identity
Reviews of citizenship decisions are a small proportion of the AAT’s overall caseload. We received 605 applications to review a citizenship decision in the 2017-18 financial year, making up just over one per cent of the AAT’s overall applications in that period. We finalised 484 Australian citizenship decisions in 2017-18, changing the decision under review in 19 per cent of cases. The AAT affirmed, or agreed with, the decision in 15 per cent of cases and 38 per cent of cases were withdrawn. The remainder failed to meet the requirements for a valid application or were dismissed for other reasons.
We have summarised three of our recent citizenship decisions to highlight some common issues and show how the AAT makes decisions in these cases.
Navab Esfahani and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4221
The AAT affirmed the Department of Home Affairs’ decision to refuse Australian citizenship to the applicant finding he did not pass the character due to his past conduct.
Nkali and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 76
The AAT affirmed the Department of Home Affairs’ decision to refuse to grant Australian citizenship to the applicant. The applicant did not satisfy the general residence requirement because he was an unlawful citizen a year prior to their application.
QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 248
The AAT set aside the Department of Home Affairs’ decision to refuse to grant Australian citizenship to the applicant. The primary issue was whether the AAT was satisfied of the applicant's identity.
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.
Disability Support Pension
Dixon and Secretary, Department of Social Services (Social services second review) [2019] AATA 208
This review was about the applicant’s entitlement to the Disability Support Pension for his epilepsy, pancreatitis and anxiety. The issue in this matter was whether the applicant attracted the required 20 impairment points to qualify for the payment.
Migration and Refugee
1602764 (Refugee) [2019] AATA 212
The AAT affirmed the Department of Immigration and Border Protection’s decision to refuse the applicant’s Protection visa. The applicant claimed that he feared returning to China because he believed he would be persecuted for being a Roman Catholic. The AAT found the applicant manufactured his evidence.
1708371 (Refugee) [2018] AATA 4974
The AAT set aside the Department of Immigration and Border Protection’s decision to cancel the applicants’ Protection visas. The Department found that the applicants, Faili Kurds from Iran, provided incorrect information in their visa applications.
Rodrigues (Migration) [2019] AATA 290
The AAT affirmed the Department of Immigration and Border Protection’s decision to refuse to grant a Skilled Independent (Permanent) visa to the applicant. The AAT considered the applicant’s attributes against the points test and found he did not reach the qualifying score of 60.
National Disability Insurance Agency
Sing and National Disability Insurance Agency [2018] AATA 4411
The applicant, a participant of the National Disability Insurance Scheme, requested additional supports in her plan. The requested supports included a sport physiologist’s attendance at gym sessions and tennis coaching. The AAT affirmed the National Disability Insurance Agency’s decision to refuse the additional supports.
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?
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