Explainer: what is 'judicial review'? How does it apply to citizenship?

One of the safeguards in the government’s plan to strip citizenship from dual nationals involved in terrorist activities is that such a decision – to be made by the immigration minister alone – would be subject to judicial review.

This might sound reasonable to those unfamiliar with the extremely narrow grounds available in judicial review in migration law. However, the reality is that simply having judicial review for this contentious power, without independent merits review, is far from reasonable.

Judicial review is different to merits review. And what the government is proposing is judicial review only – no merits review. That means a case which is unfairly decided may have a reasonable chance at independent merits review – but unless you can find error in the application of the law, no judicial review will succeed.

Evolution of judicial review in Australia

In 2001, the Howard government introduced a privative clause into the Migration Act in an attempt to effectively end any proper judicial review in migration matters. The stated justification was the volume of appeals to the federal courts.

A privative clause is a law which attempts to prevent any form of judicial review. It can still be seen in Section 474 of the Migration Act.

On its face, it prevents any judicial review. However, the High Court read down the clause in early 2003. Judges do not like being excluded from exercising their role in implementing the rule of law. The High Court ruling meant that applicants had to establish “jurisdictional error” in order to win their case, otherwise their decisions were unable to be reviewed.

Since then, there have been many cases claiming “jurisdictional error” as a reason for review, but not many win. Despite the privative clause, the volume of appeals to the courts still remains high in migration.

Non-migration appeals to the federal courts are covered by the old Administrative Decisions (Judicial Review) Act. The Fraser government introduced the act in 1977 as part of a major overhaul of Australian Administrative Law. Its review grounds remain wider than the grounds in migration cases.

How it might apply to citizenship revocation

The proposal to allow judicial review for a citizenship cancellation is not surprising. It would be required under Section 75(v) of the Constitution. Appeals to the courts from decisions of the executive exist because of the Constitution and could only be removed by constitutional change.

However, the grounds of review – “jurisdictional error” – are very narrow. These grounds include asking the wrong question in law; taking into account irrelevant considerations or failing to take into account relevant considerations; and a limited form of procedural fairness to allow someone to comment on adverse information.

The immigration minister’s carefully constructed decision letter is likely to survive judicial review. The case’s merits cannot be challenged or even considered. This is why an independent merits review, such as by the Administrative Appeals Tribunal, is a critical part of a fair and just system of review.

In merits review, new information can be considered by a reviewer. The reviewer has all the information before the decision maker, and any new information. Independent merits review’s strength is that the reviewer is not bound by the findings of the original decision maker and they can substitute a totally different decision if it is in accord with the law. In judicial review, no new information can be raised by an applicant. So, by restricting review to judicial review only, the minister increases their chances of not being overturned on review.

Such limited review already exists in migration cases, such as personal refusals or ministerial cancellations on character grounds, and in cases where the minister has a trumping power – such as the Migration Act’s Section 501A or the new Section 133A, which enables a minister to overturn a decision of a review tribunal without having to take the matter to court. Further review is limited to jurisdictional error only – a very narrow gate.

Another major concern is that citizenship cancellations are likely to be done on the basis of security reports. The contents of such reports are unlikely to be made available to someone to comment on. Such a draconian power already exists in migration law. This protects confidential information provided by law enforcement or intelligence agencies provided in the context of character decisions.

I have seen cases where the immigration department has written to an applicant telling them there are grounds to refuse or cancel their visa on character grounds, but then the letter refused to state what those grounds are because of Section 503A. Essentially, it reads thus:

The minister is considering refusing/cancelling your visa on character grounds. Please comment.

You will get no information as to the grounds, not even a hint. It makes it almost impossible for someone to reply when they do not know the details of accusations against them.

While there is a need to protect sensitive security information, this must be balanced against the right to be able to reply to the case against you.

The details of the legislation to strip citizenship are yet to be presented to parliament. But the bravado of the debate, together with the already existing extraordinary powers of the immigration minister, make it likely that the proposed laws will be extensive and minimise the scope for judicial review.

Kerry Murphy is affiliated with the Immigration Advice and Rights Centre in Sydney and the Jesuit Refugee Service. He is a partner in a specialist immigration law firm.