What Is Judicial Review?

 

TABLE OF CONTENTS

Introduction

 

From a practical point of view judicial review is about whether a decision maker took the opportunity to make the right decision.  The Court will not make the right decision in place of the decision maker. If a court finds that the decision maker did not take that opportunity then the court will undo the decision and remit it back to the decision maker to make again with the benefit of the findings and determination of the court.

First thing to identify is that judicial review is not merit review. Merit review is about running the case afresh, with new evidence if need be, often applying the facts as they exist at time of merit review (not just being limited to the facts which existed at first instance refusal). Only in very specific cases will judicial review be about re-running the case from a factual point of view.

Thus judicial review is not merit review.

In practice what judicial review is about involves these strands:

  1. Did the decision maker properly apply the law? If not the court will identify the error and send it back for reconsideration in light of the correct application of the law;
  2. Did the decision maker give the applicant a fair and meaningful opportunity to present his or her case? If not the court will quash the decision send it back usually to a differently constituted decision maker to make the decision again so that the applicant will get the opportunity to make proper submissions to the decision maker.
  3. Was the decision maker open to persuasion? Sometimes through the conduct of the decision making process the decision maker will reveal that he or she has adopted an approach which closes his or her mind to the applicant’s case. In which case the court will quash the decision and send it back to usually to a differently constituted decision maker to consider the decision afresh;
  4. Did the decision maker properly consider the individual circumstances of the applicant’s case or was it improperly influenced by a non-legislative policy.
  5. Was there a proper factual basis for the decision? This does not mean the court will determine the factual issues but a decision maker has to have before him or her evidence to justify individual findings of fact.
  6. Was the decision reasonable? This encompasses issues like illogicality and rationality as well as general notions of unreasonableness.
  7. Was the decision a proportionate response. If it was disproportionate then it forms another species of unreasonableness.
  8. Was the decision arbitrary.
  9. Did the decision maker ask the right question

 

So let’s look at some examples on how these principles apply.

Barbara Davidson