CONSIDERATION
71 An applicant who successfully identifies an error of law in the Tribunal's decision will, subject to discretionary matters, be entitled to an order setting aside the decision remitting the case to the Tribunal to be heard again: s 44(5) of the AAT Act. Although the respondent has conceded that an error was made by the Tribunal, a decision of the Tribunal may only be set aside under s 44(1) of the AAT Act where the Court is also satisfied that the Tribunal has erred in law.
72 As was recognised by the Full Court in the decision of Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272), 'the reasons of an administrative decision maker are meant to inform and are not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed'. Further, there is no requirement that the Tribunal refer to every piece of evidence and every contention advanced before it, nor must its reasons 'provide an unarguable logical progression to conclusion': see Telstra Corporation Limited v Hunter [2016] FCA 318 (at [74]). Nevertheless, the Tribunal's 'statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law': Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (at [55]) and Comcare v Power [2015] FCA 1502 (at [99]).
73 In my view, and having regard to these principles, there has been a failure to take into account relevant considerations, namely, the Attribution Principles, when exercising its discretion pursuant to subs 1207X(2) of the Act.
74 That being so, there are only two issues remaining on the appeal.
75 The first issue is whether the applicant should be granted leave to add additional grounds of appeal. The applicant relied on the decision of Minister for Immigration Ethnic Affairs v Conyngham (1986) 11 FCR 528 in support of what the applicant submits is, in essence, only one new ground of appeal, namely whether the decision of the respondent was so unreasonable that no reasonable person could have made it. At the crux of this proposed ground was the Tribunal's decision that the applicant did not have control of the Trust. The applicant submits that this decision should have been 'the end of the matter' in that once the Tribunal had reached that decision, there was only one possible outcome, and that was to set aside the first review decision.
76 As to that, while the amendment is opposed, the respondent accepts that if the amendment would be more likely to lead to the outcome for which the applicant contends, namely, that I should make the final decision now, then that would a powerful reason to allow the amendment. However, I do not consider the amendment should be allowed. It is a very late amendment which adds nothing to the applicant's argument or the outcome. As will be indicated below, there can be no doubt that the applicant does not have the requisite control but, that may not in fact be the end of the matter due to the need to examine the question of the likelihood of future benefits.
77 The second issue for debate is whether this Court should make the final decision or whether the matter should be remitted to the Tribunal. In Minister of Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, Shepherd J (with Fisher J agreeing) rejected the proposition that subs 44(4) and subs 44(5) of the AAT Act when read together gave the Court 'wide powers to make such order as it thinks fit', stating (at 585) that:
…The only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this court under this section. A power to make "such order as it thinks appropriate by reason of its decision" is much more restrictive than a power "to make such order as it sees fit" or a power "to make a decision in substitution for the decision" the subject of the appeal. Section 44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s 44(4) when it limits its statement of the express power of the court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings.
78 Furthermore, as was said by Mason J in Minister of Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 (at 40):
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.
See also Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43 (at [20]).
79 The applicant says that it is appropriate that I make the final decision because there is only one possible answer: the applicant should succeed and the Tribunal's decision should be quashed.
80 Despite the complexity of the regulations, in the end the argument comes down to a fairly narrow point, that being whether there may still be a discretion yet to be exercised by the Tribunal.
81 First, the applicant says that there is no basis on which it could be said that he has control in any sense, practical or legal, as governed by the Attributable Principles. The respondent says there may be some residual discretion on that question because, as noted at [42] of the Tribunal's reasons, all decisions of the applicant are made by his brother and mother on his behalf. The applicant's brother also controls the Trust and has an enduring power of attorney in respect of the applicant. Therefore, the respondent submits that it might be said that when the applicant's brother makes decisions about control of the Trust, as he is compelled to act in the best interests of the applicant, it is effectively the applicant making those decisions. I am not attracted to this argument, because, quite properly, the Attribution Principles are directed only to the circumstances surrounding the company or the trust in issue. To go further and look at the enduring power of attorney does not appear to me to be contemplated in the otherwise expansive principles. In my view, it can be said at this juncture that in every sense, including common sense, it is clear that the applicant does not have effective control of the Trust.
82 A greater difficulty for the applicant's argument arises, however, in regards to the question of benefits that may arise from the Trust. Despite the Tribunal's finding on control under s 10 and s 11 of the Attribution Principles, the decision maker must also consider the likelihood of future benefits from a trust: s 10 and s 19 of the Attributable Principles.
83 In the context of Pt 3, but not Pt 2, the Tribunal concluded (at [63]) that it was 'reasonably foreseeable' that the applicant would receive future benefits from the Trust. How this decision was reached is unexplained, although perhaps it was reached on the basis that the Trust was set up for the applicant's benefit. However, as the applicant observes, there is no evidence of the applicant actually receiving any benefit from the Trust other than residing in a house which he shares with others and which has been excluded (in accordance with relevant principles) in the calculation of the applicant's assets. Importantly, the applicant stated that the very reason that he has not received any benefits from the Trust is because in doing so he would risk exceeding the threshold under the Act, which would in turn make him ineligible for the pension. It should be noted that this perhaps may sound a little contrived and, reading between the lines in the Tribunal's decision, the Tribunal may have taken the view that this was a trust for which the provisions under attack were directly written, namely, that the Trust having been established to effectively shield the assets of a pension holder from consideration. However, as discussed, how this decision was reached is unexplained.
84 As a result of the helpful exchanges of counsel, I consider that the question for this Court is a short one: is there really only one possible answer? If that is the position, then the respondent accepts that the matter should not be remitted to the Tribunal and this Court should make the decision. To my mind, I consider that there was only one possible answer in relation to control, given the applicant's very severe mental disability. However, the position is more complex in relation to the 'benefit' the applicant derives or may derive from the Trust. In particular, I have difficulty in concluding that a range of answers might not be open in relation to the possibility of a future benefit from the Trust. In fact, I cannot see how it could be said that there was not a range of possibilities open on this point. For this reason, unfortunately the matter will have to go back to Tribunal for the third time.