Is Judicial Review Merits Review?

TABLE OF CONTENTS

Introduction

Extract from submissions:

Often the Minister submits that what an applicant is really after is merit review in this court. That is an easy submission to make but often trite. What the appellant seek is proper merit review at first instance, the submission is made that there was no proper merit review at first instance. The purpose of this application is to seek orders to ensure that that there is a proper process of merit review which the applicant has been denied. The word ‘process’ does not devalue the remedy, it being the applicant’s case that had the process been done properly then the applicant would stand a proper chance of having a favourable outcome. Lack of proper process means that the applicant has been denied substantive rights and a substantive remedy. Of course it needs to be pointed out that this court does not have jurisdiction to carry out a merit review, no order about the substantive merits of the matter are sought here. This court has no power to make orders about the merits of the case.  Of course this court should not embark on an evaluative examination of the merits. (That is solely for the tribunal, in others once the court has found an error in the process the matter should be remitted without evaluating the merits. The reason is that the court has not conducted a trial of the merits involving an examination of witnesses.)