44Appeals to Federal Court of Australia from decisions of the Tribunal

#### 44 Appeals to Federal Court of Australia from decisions of the Tribunal Appeal on question of law (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. > Note 1: This Part does not apply to certain migration proceedings (see section 43C). > Note 2: A party to a child support first review may in some instances appeal instead to the Federal Circuit and Family Court of Australia (Division 2) (see section 44AAA). (1A) Subsection (1) does not apply in relation to a proceeding in the Social Services and Child Support Division, other than a proceeding: (a) that is a child support first review; or (b) for review of an AAT reviewable employer decision within the meaning of the Paid Parental Leave Act 2010. Appeal about standing (2) Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal. > Note: This Part does not apply to applications in relation to certain migration decisions (see section 43C). When and how appeal instituted (2A) An appeal by a person under subsection (1) or (2) shall be instituted: (a) not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. (2B) In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds: (a) if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision—the written statement contains reasons that were not mentioned in the oral statement; (b) the text of the decision or a statement of reasons for the decision has been altered under section 43AA. Jurisdiction (3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction: (a) may be exercised by that Court constituted as a Full Court; (b) shall be so exercised if: (i) the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Deputy President who is not a Judge; and (ii) after consulting the President, the Chief Justice of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and (c) shall be so exercised if the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge. Powers of Federal Court (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. Constitution of Tribunal if Federal Court remits case etc. (6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal: (a) the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and (b) whether or not the Tribunal is reconstituted for the hearing—the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court. Federal Court may make findings of fact (7) If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if: (a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and (b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: (i) the extent (if any) to which it is necessary for facts to be found; and (ii) the means by which those facts might be established; and (iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and (iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and (v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and (vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and (vii) such other matters (if any) as the Court considers relevant. (8) For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may: (a) have regard to the evidence given in the proceeding before the Tribunal; and (b) receive further evidence. (9) Subsection (7) does not limit the Federal Court of Australia’s power under subsection (5) to make an order remitting the case to be heard and decided again by the Tribunal. (10) The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under subsection (7).