July 2020 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. In-person hearingsThe AAT will progressively resume in-person hearings at all of our registries, except Melbourne, from 3 August 2020. While most hearings and all conferences will continue to be conducted remotely for the foreseeable future, we are aware there are some exceptional circumstances in which a remote hearing may not be practicable and where the matter may not be deferred. We are taking a staged approach to recommencing in-person hearings because our priority continues to be the health and wellbeing of our members, staff, visitors and the wider community. Visit our website for more information and future updates. Child support review—patterns of careEvery year, on average, the AAT receives and finalises more than 2000 applications for review of a child support decision made by the Department of Human Services. The majority of applications are to review decisions relating to parental care percentages and those where there has been a change of assessment. In this issue, we focus on applications seeking review of a determination about the percentage of time a parent cares for a child. These have been increasing in recent years and this decision type represents a third of lodgements relating to child support. When reviewing these decisions, one principle often applied by the AAT at first review is the point-in-time approach. When applying this approach the Tribunal stands in the shoes of the original decision maker and looks at what was the likely pattern of care at the time the original decision was made, or when the Child Support Registrar was first notified of the care change. The Tribunal will consider evidence that was before the original decision-maker. The Tribunal can also consider evidence that was not before the original decision-maker, provided the new evidence relates to events that occurred at the time the original decision was made, or to the intentions of the parents at the time the original decision was made. When applying the point-in-time approach, the Tribunal may disregard new information about events or changes that have happened subsequent to the original decision, where that evidence is not relevant to the question the original decision-maker was bound to decide. For example, at the time of the original decision the parents may have had a clear intention about future care of the child. By the time the matter is before the Tribunal, that intention may have changed. If the Tribunal considers that the change in intention constitutes a new care change, which should be the subject of a new original decision, then the Tribunal may disregard any evidence relating to the subsequent change in intention. In that situation, consideration of the new information could be considered to change the nature of the decision. Below are some examples of cases where we applied the point-in-time approach to review care percentages in child support decisions. Wilder and Southgate (Child support) [2020] AATA 579 (11 February 2020) The AAT had to decide whether there was evidence a father had regular care of his older child after she relocated interstate. Nelson and Bonham (Child support) [2020] AATA 588 (10 February 2020) In this review of the pattern of care of a 16 year old child, the AAT had to consider the impact of the mother’s decision to relocate to another country for five months. 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. GeneralJacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 (27 May 2020) The AAT had to decide whether there was a reason to revoke the mandatory cancellation of an applicant’s visa. Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1506 (7 May 2020) The AAT had to decide whether there was another reason to revoke a mandatory decision cancelling the applicant’s visa. He has a long criminal history but also strong family ties to Australia. Migration and Refugee1825788 (Refugee) [2020] AATA 428 (6 February 2020) The AAT did not have the power to review the merits of the applicant’s claim because the visa had been wrongly granted. 1614946 (Refugee) [2020] AATA 660 (4 February 2020) In this case, the applicant’s generalised fears about his personal safety and of the effects of economic and political instability in his home country do not amount to a risk of significant harm. Veterans’ appealsColebatch and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 34 (16 January 2020) The AAT found an employee’s psychiatric condition was not caused by his Defence service, however the adjustment disorder he suffered did arise out of an injury that was service-related. 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. |