Australian Immigration Daily News

How can you tell the difference between “merits review” and jurisdictional error?

Would it be a good idea to make a pilgrimage to Greece and consult the Oracle of Delphi?

Or would it be better to consult a Ouija Board or have other assistance from occult sources?

Flip a coin and go home early?

Better yet: keep reading this blog!

There is a recent case from the Federal Court, McCutcheon v Minister for Immigration and Border Protection (2018) FCA 828 (6 June 2018) that provides guidance.

Does it matter if you can tell the difference between merits review and jurisdictional error if you are an RMA and not a lawyer?

Yes, I would suggest it does. As the recent controversial submission from the Law Council of Australia indicated, it is often the role of RMAs to advise their clients following an unsuccessful hearing before the AAT whether they should take the next step and seek further review in the Federal Courts.

And even if the RMA will not be actually be acting for the client in court, and may not even make the ultimate call about whether there is a reasonable argument that jurisdictional error did occur, it is still nonetheless essential for RMAs to be aware of the dividing line between merits review and jurisdictional error, in order to understand whether it would benefit the client to seek further formal legal advice. 

In other words, RMAs will most commonly be the first “filter” to make a judgment about whether an error of the sort that would make it worthwhile to bring a case to the attention of the courts has occurred, and whether it is worth the time and expense of getting legal advice.

How is the McCutcheon case relevant to this task, of telling the difference between merits review and jurisdictional error?

Here’s the story: McCutcheon was a case that involved an application for judicial review from a decision of the Assistant Minister to cancel a Resident Return Visa.  The visa holder (Mr McCutcheon) had lived in Australia for nearly 40 years, when he migrated with his mother and siblings from the UK and was 11 years old.

On one level, the circumstances of the case would not attract any sympathy at all: the visa was cancelled after the visa holder had been convicted of charges of rape and false imprisonment in Victoria, and sentenced to a term of imprisonment of 8 years.

Here is where the question of the dichotomy between merits review and jurisdictional error comes into play in this case:

The visa holder had claimed that if the cancellation of his visa was not revoked, and he were returned to his country of nationality, the UK, that he would have no family support and that he would become homeless.

It was argued in the judicial review application that was filed in the Federal Court that the Assistant Minister had denied the applicant procedural fairness by failing to give “proper, genuine and realistic consideration to this claim.

So the first task before the Court was to analyse whether the Assistant Minister “failed to consider” the claim that the visa cancellation would have the effect of rendering him homeless upon his removal back to the UK.

Interestingly and importantly, the Court held that it was not enough that the Assistant Minister had used “stock phrases” in the reasons for refusing to revoke the cancellation  - phrases to the effect that the Assistant minister had “assessed all of the information”, “”considered all relevant matters” or “given full consideration to all of these matters” to show that specific and proper consideration  had been given to the question of whether the cancellation would have the effect of rendering the visa holder homeless.

Nor is it enough for there to be some recitation in the Assistant Minister’s reasons that he had “noted” a or “had regard” to the visa holder’s claims about the risk of homelessness.

The Court scrutinized the whole of the record and concluded that the Assistant Minister had made no express finding in regard to the representation that the visa holder would be made homeless,  and indeed that no finding on this issue had been “subsumed” in more general findings.

So, what was ultimately revealed in McCutcheon was what may be described as the “classic” or quintessential” form of jurisdictional error, that being a failure to consider a relevant matter.

In McCutcheon, the Court did make clear where the dividing line between jurisdictional error and merits review lies:  If the decision-maker (in this case the Assistant Minister) had considered the “relevant matter” (whether the visa holder would become homeless) and had nonetheless concluded that that possible homelessness did not constitute a “reason” for revoking the cancellation, the Court would  not have intervened.  For example, if the Assistant Minister had found that any period of homelessness that the visa holder might have suffered would have been brief, and was therefore not deserving of significant weight, then the Court would not have looked further into the question.

So, in short, it is really the failure to consider relevant matters that really matters when it comes to determining whether jurisdictional error has occurred, and not the way in which the issue has actually been dealt with. 

Or to put it another way, it is in the process that is followed – whether a relevant issue has been considered at all, and not the ultimate substantive determination about the weight to be given to a particular matter – that is essential to understanding whether a jurisdictional error has occurred.

Disagreement with the result that has been reached if all relevant considerations have been taken into account is generally viewed to be “merits review”. If nothing more can be advanced other than disagreement with the outcome, rather than with the process relied on by the decision-maker, it is very unlikely that an application for judicial review will get anywhere at all.