Merits review versus judicial review in Australian law
🔹 Overview: Merits Review vs Judicial Review (Australia)
➤ What is Judicial Review?
Judicial review is where a court examines whether a government decision is legally valid — that is, whether the decision-maker:
had the legal power to make the decision,
followed fair procedures,
stayed within legal limits, and
did not commit an error of law.
🟡 The court does not re-decide the case — it only reviews the legality of the decision.
➤ What is Merits Review?
Merits review is where a tribunal (like the Administrative Appeals Tribunal (AAT)) reconsiders a decision on its facts, merits, and policy.
🟢 The tribunal can:
look at new evidence,
substitute its own decision for the original one,
ask: Was this the best or most preferable decision?
🔁 Quick Comparison
| Aspect | Judicial Review | Merits Review |
|---|---|---|
| Who hears it? | Courts (e.g. Federal Court, High Court) | Tribunals (e.g. AAT) |
| Focus | Legality of the decision | Correctness/preferability of decision |
| Can new evidence be introduced? | ❌ No | ✅ Yes |
| Can decision be changed? | ❌ No (only invalidated) | ✅ Yes (can substitute new decision) |
| Example Ground | Jurisdictional error | Decision not reasonably open on facts |
🔹 Detailed Case Law Discussion
Let’s now look at key cases illustrating both kinds of review:
🔸 JUDICIAL REVIEW CASES
1. Kioa v West (1985) 159 CLR 550
Facts:
A Tongan national was to be deported.
He wasn’t given a chance to respond to claims made against him.
Issue:
Was natural justice (procedural fairness) denied?
Held:
Yes. The High Court ruled that administrative decisions affecting rights must follow procedural fairness, unless excluded by statute.
Importance:
Key judicial review case establishing procedural fairness in migration and other administrative decisions.
2. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Facts:
A provision in the Migration Act tried to exclude judicial review of certain migration decisions.
Issue:
Can Parliament remove all judicial review of administrative action?
Held:
No. The High Court held that judicial review is constitutionally protected under s 75(v) of the Constitution.
Migration decision contained a jurisdictional error.
Importance:
Landmark decision on the entrenched nature of judicial review in Australia.
3. Minister for Immigration v Li (2013) 249 CLR 332
Facts:
Visa applicant had her application refused after requesting an adjournment, which was denied.
Issue:
Was the decision unreasonable?
Held:
Yes. The High Court found the refusal legally unreasonable — it lacked an intelligible justification.
Importance:
Refined the concept of legal unreasonableness in judicial review.
4. Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1
Facts:
An official had told an applicant’s child that certain steps would be taken — they weren’t.
Issue:
Did the failure breach procedural fairness?
Held:
No. Procedural fairness does not guarantee outcomes — only fairness in process.
The applicant needed to show a practical injustice occurred.
Importance:
Clarified the limits of legitimate expectation and fairness in judicial review.
🔸 MERITS REVIEW CASES
5. Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Facts:
Drake, a US citizen, had been convicted and was facing deportation.
He appealed to the AAT.
Issue:
Could the AAT substitute its own view of the case?
Held:
Yes. The AAT has the power to make the "correct or preferable" decision.
Importance:
This is the foundational case for merits review in Australia.
Confirmed that the AAT can re-evaluate facts, evidence, and policy.
6. Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Facts:
A migration agent’s registration was cancelled.
He appealed to the AAT.
Issue:
What powers does the AAT have when conducting merits review?
Held:
AAT may reassess the facts and law to arrive at the most correct or preferable decision.
Importance:
Reinforced the active role of tribunals in merits review.
7. Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1
Facts:
A refugee visa applicant was refused.
The AAT reviewed the case and made factual findings.
Issue:
Can a court interfere with those factual findings?
Held:
No, unless the findings involve an error of law.
Importance:
Emphasised the separation: tribunals decide facts, courts decide legality.
🔹 Summary Table: Case Themes
| Case | Review Type | Legal Principle |
|---|---|---|
| Kioa v West | Judicial | Procedural fairness is required |
| Plaintiff S157 | Judicial | Judicial review is constitutionally protected |
| Minister v Li | Judicial | Legal unreasonableness |
| Ex parte Lam | Judicial | Limits of procedural fairness |
| Drake No. 2 | Merits | AAT can substitute its own decision |
| Shi v MARA | Merits | AAT must make the correct/preferable decision |
| Haji Ibrahim | Mixed (JR limit) | Court won’t interfere with AAT facts |
🔚 Conclusion
In Australian law, judicial review ensures that decisions are lawful and procedurally fair, while merits review allows a new body (usually a tribunal like the AAT) to redecide a case from scratch, including re-evaluating evidence.
Both are vital accountability mechanisms, but they serve different purposes:
Judicial review = Is the decision legal?
Merits review = Is the decision correct or better?
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