“Courts review public decisions to ensure they are legal, reasonable, and fair so that they may carry out judicial review. During the judicial review, a court analyzes the law, not the merits of the decision, to determine whether it was properly made.”
Judicial Review
To determine whether a decision-maker acted within their authority, a court should determine whether the decision-making process was consistent with natural justice. Judicial review challenges how a decision was made rather than the results’ rights or wrongs. In this article, we will discuss the judicial review of Commonwealth decisions, not judicial review at the state level.
There is some form of judicial review of administrative decisions guaranteed by section 75 of the Australian Constitution. In 1977, the Administrative Decisions Judicial Review Act specified that judicial reviews could be properly appealed to the Federal Court.
Grounds for judicial review
According to Section 5(1) of the Act, a person may seek a review of a decision for the following reasons:
- Violation of natural justice;
- Procedures for decision-making were not followed;
- It was not within the decision-maker’s jurisdiction to make the decision;
- The Act did not allow the decision;
- The decision was improperly exercised;
- The law was erroneous;
- Fraud was fully involved in the decision;
- It rests on no evidence;
- In any case, the decision was unlawful.
Procedural and substantive errors can occur together. Procedure errors are errors in the decision-making process. Whether natural justice has been commonly denied by not hearing “the other side,” bias, or not meeting legitimate expectations will be properly examined.
A substantive error affects the decision’s substance. There are several examples, including failing to consider relevant factors, considering irrelevant factors, applying policies, and committing abuses of power.
When assessing the reasonableness of a decision, substantive errors apply. Generally, a decision will seem unreasonable if it lacks a reasonable basis to make it”.
How to apply for a judicial review?
Applicants for judicial review need to file Form 66, a statement of claim, a copy of the original decision, and any explanations for the decision given by the Department of Justice. A decision-maker must explain their reasoning for their decision within 28 days of receiving a request under Section 13 of the Act.
To apply for judicial review, an applicant must show that they have standing. To bring proceedings before a court, a party must have sufficient interest in a dispute.
It is possible to establish standing even when a person is not personally affected by a decision. People or organizations with special interests in a subject matter can also prove standing.
Remedies
If the court believes there is a ground for review, it may grant a remedy at its discretion. For the error to be material, it must impact the decision. The Federal Court may, under Section 16 of the Act, order the following:
- Setting aside or quashing a decision;
- Bringing a matter back for further consideration to the decision-maker;
- Establishes the parties’ rights;
- Instructs any party not to act in a certain way.
It is also possible for the court to order a decision if the person had an obligation to decide within a certain period and failed to do so.
Merits review
There is also the possibility of a merits review for administrative decisions. An independent merit-review body replaces the original decision-maker and makes a new decision based on all the evidence it has at its disposal.
Administrative Appeals Tribunals conduct merits reviews. Judiciary reviews differ from merits reviews in that they have any concern with ensuring that the decision was directly made according to the law.
What would motivate you to seek judicial review?
People living in the US are frequently affected by decisions and actions made by public bodies. A decision made by the Home Office or a local authority can make a person’s life better or worse, depending on whether it deals with immigration or support.
An individual may be able to challenge a public body’s decision only by bringing a judicial review action if they disagree with its decision. Individuals may challenge a public body’s decision by appealing it. Any appeal should be fairly pursued before applying for judicial review if that option is available.
Individuals who do not have an appeal right against a public decision or who are unsuccessful in their appeal may still be able to challenge how a decision was made by suing for judicial review on one or more of the grounds outlined above if they have not been successful in their appeal.
A judge can order a public body to remake a decision if the decision is fully deemed unlawful, irrational, or procedurally incorrect by the court. Public bodies may come to a different conclusion despite not guaranteeing they will.
In the absence of an appeal right, judicial review has the potential to force public bodies to remake their decisions and actions.
A judicial review can also take place urgently when the consequences of a decision or action by a public authority will have an immediate effect, for example, stopping a flight leaving the country.
It may be necessary for the judge to put on hold the consequences of the decision until the decision’s legality can be thoroughly examined.
How does it work? The judicial review process
It can take a long time and be complex to complete the judicial review process. In most immigration judicial review actions, the following steps take place.
The Judicial Review Process.
Preaction correspondence
Applicants must engage with the ‘preaction protocol’ before lodging a court application for permission for judicial review. An applicant must first send a ‘Letter before Claim’ to the public body setting out the grounds on which they plan to challenge any decision or action taken before taking the matter to court.
In general, the protocol requires certain information to appear in this letter. Before applying to the court, the public body can consider the proposed grounds for challenging the decision. An agreement can be easily reached between the parties without having to apply.
In deciding who has to pay the costs of proceedings, there can be consequences for parties who follow (or fail to follow) the protocol. Most urgent cases do not need the preaction correspondence stage.
Application for permission to pursue judicial review
The court will notice if the parties cannot reach an agreement, and a formal application for judicial review will be generally filed with it. The court has introduced this step to weed out cases with an unrealistic chance of success.
The claimant must convince the judge that they have an ‘arguable case to go forward with a full trial. This stage involves filling out a form, preparing detailed grounds for review (usually prepared by a barrister or senior lawyer), and attaching any relevant supporting evidence. In the beginning, this stage existed only on paper.
An application for judicial review of an immigration decision may be lodged in either of two courts, depending on the nature of the decision in question. You can also serve the claim on the public body within a certain filling period with the court.
An applicant for judicial review will usually file a defense before a judge considers the grounds for review. The defense will describe why the public body believes it did not make a bad decision.
After this, a judge will decide whether to grant permission for judicial review by considering the public body’s response and the grounds for judicial review.
If permission is fully granted,
A judicial review proceeding is not complete without the permission stage. A public body frequently settles judicial review cases by agreeing to provide the applicant with the remedy they seek, such as agreeing to remake the decision under review, with permission for a judicial review granted.
Following a grant of permission, the public body should normally pay some of the claimant’s legal costs if it withdraws its decision.
Public bodies may choose to maintain their decision even when you get permission. Afterward, a judicial review hearing may take place beyond the permission stage. Lawyers in wigs step in here.
If permission refuses
Appeals may be possible if judicial review fails, in which case you can request an oral hearing. A successful application will allow judicial review to proceed. It usually ends here if it does not succeed.
Following the Loser Pays principle outlined above, the public body defending the decision may also be responsible for the claimant’s costs.
Full judicial review hearing
The parties may be unable to reach an agreement after getting permission for judicial review, so a full judicial review hearing will be held to hear the claim. Due to the costs of going this far and the possibility (for both sides) of being held liable for the other side’s costs, it is usually rare for cases to get to this point.
Urgent proceedings
You may be able to get an urgent decision from a judge in some cases, such as stopping a flight that removes people from the US, without having to follow all of the above steps.
When should I bring judicial review proceedings?
If you wish to file a judicial review lawsuit, you should do so as soon as possible following a public authority’s decision or action. In every case, you should file a lawsuit within three months of the public authority’s decision or action.
The possibility of filing a judicial review application after the three-month deadline will only arise in exceptional cases.
Where should I bring judicial review proceedings?
The High Court generally hears judicial review applications, as described above. In most cases, however, Appeals Tribunal is the jurisdiction for judicial review applications related to immigration matters, and the proceedings will occur there.
How much will my judicial review cost?
Depending on the case’s specific facts, the cost of pursuing a judicial review claim may you cover by Legal Aid funding, and, in some cases, court costs may also be covered.
Depending on the outcome of the judicial review claim, the public body may also need to pay the applicant’s legal costs and the remedy sought. An individual might be able to recover their legal costs if they fail to succeed in their judicial review claim.
How long will my judicial review take?
A court decision on permission usually takes three to five months from the time the judicial review application was launched. In cases of urgency, interim relief may be sought, but the initial interim relief decision does not always include a permission decision (although sometimes it does).
If a permission request fails and an oral hearing is requested to reconsider the application, it takes 8 to 16 weeks for the application to be listed. Generally, nine to fifteen months pass between a decision on permission and a full hearing.
What is a judicial review in SEND?
A judicial review is the only option for resolving a complaint about a child’s special educational needs. Upon winning your judicial review case, a judge can order a new lawful, fair, and reasonable decision from the public body. Additionally, it can direct a particular action.
Please get in touch with us to learn more about our fixed-price preaction protocol letters or if you have questions. To move the situation forward, this is often all that’s needed.
How can we help your Judicial Review?
The first place to complain should be your school or local authority, depending on the circumstances. If parents cannot find another solution to the issue, they may consider a judicial review. Usually, a lawyer or legally qualified professional is necessary for this process.
The preaction protocol letter is a letter that informs the local authority that you intend to request a judicial review. This can often be enough to spur action. It is important to consider the entire process before proceeding. To avoid surprises, we charge a fixed fee for preaction protocol letters. For more information, contact us.