What is preferable, or, was it lawful? The differences between merits review in the AAT and judicial review in the Courts

Joel McComber
20 January 2020

One of the most significant distinctions to grasp when it comes to migration law, or any type of administrative law, is the distinction between a review of a decision ‘on the merits’ (merits review) and judicial review of a decision by a Court.

It is significant because the Administrative Appeals Tribunal (which conducts merits review) and the Courts (which perform judicial review) do not decide the same questions.

Many people think that the AAT and the Courts do the exact same thing and that, if they get an unfavourable decision at the AAT, it’s a simple matter of appealing that decision to a Court. Unfortunately, it isn’t that simple.

What the Administrative Appeals Tribunal does – review ‘on the merits’

When a person applies to the AAT for review of a decision, what is it the AAT is being asked to do?

The simple answer is, it is being asked to do the exact same thing as the delegate who made the decision under review. If a visa has been cancelled, the question is should the visa be cancelled? If a visa has been refused, should the visa be refused? If a cancellation decision has not been revoked, should the cancellation be revoked?

In the traditional description, the Tribunal ‘stands in the shoes’ of the delegate and is required to decide how to answer the relevant question.

It is true that the processes by which delegates and the Tribunal reach a decision are significantly different. Delegates typically make decisions after reviewing documentary evidence and material available on the Department’s file (including material provided by the non-citizen). The Tribunal will, usually, consider that material, but will also have the opportunity to summons a greater ranger of material and take oral evidence from witnesses (including the applicant). The applicant will also have the chance to present new evidence.

However, ultimately the question being answered by the Tribunal is the same as the delegate—should this visa be cancelled or not? The Tribunal is not interested in identifying any error on the part of the delegate. In fact, very little attention will be paid to the delegate’s reasons for decision. The Tribunal will not go through the delegate’s written reasons and, sentence by sentence, dissect the delegate’s reasons. The Tribunal may not refer to the delegate’s decision at all.

It is not an appeal in the normal sense of the word – where an appellant has to identify some error on the part of the initial decision maker. It is really just a second person (the Tribunal member) deciding the question as if there had been no decision under review at all.

In this way, the objective of the Tribunal is to review all the relevant evidence and material and reach the preferable decision. That is, whether a visa should be cancelled or refused. Or whether a cancellation should be revoked.

What the Courts do – judicial review and identifying jurisdictional error

Put bluntly, Courts are not interested in what the preferable decision is in your case. They are not interested in whether a decision to cancel a visa was the right (or preferable) decision in all of the circumstances.

The only thing a Court is concerned with is whether the decision was lawful. And a lawful decision does not have to be the preferable decision. In fact, whether a decision is lawful has nothing to do with whether it was the preferable (or right) decision in all the circumstances. A lawful decision may well appear unjust (in the broader sense), inequitable or unfair.

It is also important to note that decision made under the Migration Act are not subject to judicial review under the grounds prescribed in the Administrative Decisions (Judicial Review) Act 1977, but are subject to judicial review under the more limited power prescribed by s 75 of the Constitution. The consequence is that decisions made under the Migration Act can only be set aside by a Court if the decision is affected by jurisdictional error.

There are many types of jurisdictional error. For example, a decision-maker ignoring relevant evidence or misunderstanding the nature of the decision they are empowered to make. But, an error can only be jurisdictional if it is material (that is, if, but for the error, a different decision could have been reached). Importantly, that a delegate did not make the most preferable decision in all the circumstances is not a jurisdictional error. That a decision is ‘unjust’, inequitable or unfair are not, in and of themselves, jurisdictional errors.

Why the distinction

A reasonable question at this point is why is there a distinction between merits and judicial review at all.

To answer that question, we need to delve back into some broader concepts underpinning our system of government. It is necessary because most people reading this article have very little reason to obtain (or retain) this information, including many lawyers. At the risk of oversimplifying things, here is En Garde’s CliffsNotes version of Australia’s system of government.

But, the basic reason is because it is for the Minister, and not the Court, to decide whether a person’s visa should or should not be cancelled. It is for the Court to decide whether that decision is lawful. If a Court finds that a cancellation decision is unlawful, it does not substitute a decision that the visa should not be cancelled.

That Courts do not, and cannot, set aside a decision even if it is not the preferable one (and even if it appears unjust, inequitable or unfair) might be counter-intuitive. But ultimately, it is an important aspect of our system of government that balances a number of competing principles with one another.

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