Can FCA make findings of fact on merits?

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Federal Court. Is the FCA's power to make findings of fact under s 44(7) of the AAT Act "related to the circumstances in which a court upon finding an error of law in the Tribunal’s decision might make an order in substitution for the Tribunal’s decision rather than remit the matter back to the Tribunal for re-determination according to law"? If so, is the FCA nonetheless not to usurp the fact-finding function of the Tribunal in determining whether error is shown in the Tribunal’s decision, because an appeal from a decision of the Tribunal is on a question of law?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Section 44(7) of the AAT Act provided that, on an "appeal" from the AAT, the FCA "may make findings of fact if ... 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 ... it appears to the Court that it is convenient for the Court to make the findings of fact". Is the power to make findings of fact under s 44(7) "related to the circumstances in which a court upon finding an error of law in the Tribunal’s decision might make an order in substitution for the Tribunal’s decision rather than remit the matter back to the Tribunal for re-determination according to law"?

Question 2: If the answer to Question 1 is 'yes', can it nevertheless be said that, by reason of the limitation in s 44(7)(a), "because an appeal from a decision of the Tribunal is on a question of law, in determining whether error is shown in the Tribunal’s decision the court should not usurp the fact-finding function of the Tribunal"?

Question 3: Is the FCA's power to admit further evidence under s 44(8) of the AAT Act "fettered by the limited and discretionary circumstances in which the court on an appeal on a question of law might make findings of fact by way of disposition of the matter"?

The FCA answered those questions as follows:

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