Merits review vs judicial review
🔍 MERITS REVIEW vs JUDICIAL REVIEW
| Feature | Merits Review | Judicial Review |
|---|---|---|
| Definition | Re-evaluation of the facts, law, and policy of a decision. | Legal scrutiny of whether a decision was lawfully made. |
| Scope | Looks at facts, law, and discretion of decision-maker. | Focuses on legality, process, and jurisdiction. |
| Purpose | To reach the correct or preferable decision. | To ensure legality and fairness in decision-making. |
| Tribunal/Court | Administrative tribunals (e.g., AAT in Australia). | Courts (e.g., Federal or Supreme Court). |
| Outcome | Tribunal can substitute its own decision. | Court may quash, remit, or declare invalidity but not remake. |
| Standard of Review | Correctness or preferability. | Legality, rationality, procedural fairness. |
| Example Bodies | Administrative Appeals Tribunal (AAT), Immigration Review Tribunal. | Federal Court, High Court (Australia), Supreme Court (UK/US). |
| Available When | Usually after an internal decision, and where statute allows. | Available when a decision is ultra vires, biased, or unfair. |
🔸 MERITS REVIEW — CASE LAW ANALYSIS
1. Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Court: Federal Court of Australia
Facts: Mr. Drake was a U.S. citizen whose visa was cancelled due to a criminal conviction. He sought review from the Administrative Appeals Tribunal (AAT).
Issue: Could the AAT take into account policy when making its decision?
Held: The AAT can consider government policy but must also make its own independent assessment.
Significance:
Emphasized the AAT’s role to reach the correct or preferable decision based on merits, not just legality.
Recognized that tribunals are not bound by policy, though they may be guided by it.
2. Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Court: High Court of Australia
Facts: Mr. Shi’s registration as a migration agent was cancelled. He appealed to the AAT.
Issue: Was the AAT making its own decision or merely reviewing the original one?
Held: The AAT conducts a de novo review, meaning it remakes the decision from scratch.
Significance:
Reinforced that merits review involves a fresh decision independent of the original.
Tribunal is not limited to errors in the original decision but can consider all material afresh.
3. Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Court: AAT
Facts: Mr. Pochi faced deportation due to criminal convictions.
Issue: What is the role of the AAT in reviewing such decisions?
Held: The AAT was not confined to legal correctness but could look at whether the preferable decision would have been not to deport.
Significance:
Clarified that the AAT is not a court and therefore not limited to questions of law.
Decision-making is broader, allowing factual and discretionary reconsideration.
🔸 JUDICIAL REVIEW — CASE LAW ANALYSIS
4. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Court: High Court of Australia
Facts: The plaintiff challenged a decision under the Migration Act after privative clause tried to exclude judicial review.
Issue: Can Parliament oust judicial review for jurisdictional error?
Held: No. A privative clause cannot exclude judicial review for jurisdictional error.
Significance:
Confirmed that judicial review is constitutionally entrenched under s 75(v) of the Constitution.
Highlighted the limits of legislative power in restricting review for legality.
5. Kirk v Industrial Court of NSW (2010) 239 CLR 531
Court: High Court of Australia
Facts: Mr. Kirk was convicted of workplace safety breaches by a court established under state law.
Issue: Was there a jurisdictional error reviewable by the Supreme Court?
Held: Yes. There was a jurisdictional error, and State Parliaments cannot oust judicial review for jurisdictional error.
Significance:
Landmark in constitutional law — reinforced judicial review as a central constitutional protection.
Judicial review remains available even if legislation tries to exclude it.
6. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Court: High Court of Australia
Facts: The decision-maker failed to disclose personal information affecting an asylum decision.
Issue: Was there a denial of procedural fairness?
Held: Yes, failure to give procedural fairness amounted to a jurisdictional error.
Significance:
Emphasized procedural fairness as a component of legality.
Demonstrated how courts can quash decisions where fairness is not observed.
7. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (UK)
Court: House of Lords (UK)
Facts: Anisminic sought compensation after the Suez crisis but was denied due to an alleged legal error. A privative clause tried to shield the decision from review.
Held: Even errors of law within jurisdiction render a decision void and reviewable.
Significance:
Foundational UK case on jurisdictional error.
Inspired the approach later adopted in Australia in Plaintiff S157.
📌 KEY TAKEAWAYS
| Aspect | Merits Review | Judicial Review |
|---|---|---|
| Type of decision-making | Substantive re-decision | Supervisory |
| What is reviewed? | Law, facts, discretion, policy | Legality, procedure, jurisdiction |
| Can the original decision be replaced? | Yes | No |
| Can fairness be reviewed? | Yes, broadly | Yes, but limited to legality |
| Main case example | Drake, Shi, Pochi | S157, Kirk, Anisminic, SZMTA |
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