This briefing looks at the approach taken by the High Court in a series of cases about refugee law. It aims to identify some useful principles for decision-makers in the area of refugee law and in other areas. In principle, judicial review of administrative decisions is limited to declaring and enforcing the law.
Courts have no jurisdiction to review the merits of an administrative decision.
But in practice, it is often difficult for a reviewing court to draw a clear distinction between the merits and the legality of a particular decision. It is especially difficult to distinguish between the merits and legality of a decision when in order to make the decision, the decision-maker has to come to a view on factual issues. Often the statute which confers power to make the decision requires the decision-maker to be satisfied that a particular set of facts exists. This subjective element further complicates the reviewing court s task. Successive provisions of the Migration Act 1958 have required the Minister and his or her delegates to apply the Convention definition of refugee when making certain decisions under that Act.