What’s the difference between the courts and the ART? 

Do you know what the difference between ART and the Court is? For many of us, the answer would be “no“ because both the ART and the Courts are able to review decisions made by the Departments. However, both the Courts and ART actually operate very differently and exist for different reasons.

The best way to understand how the ART and the Courts work is by looking at the way each body reviews matters.

How the ART Review Decision

The ART or commonly known as the Tribunal, does not look at the original decision and consider whether the original decision maker had made a mistake. Instead, the ART takes a fresh look at all the information given, including new ones and the law, and makes a decision on its own view about what the decision is on that particular case. This whole process is called merits review. Merits review by the ART not only gives applicants an opportunity to review the decision made on their application by the Department, but it also contributes to broader goals of maintaining high-quality government decision-making and accountability.

Once the ART has reviewed the matter and taken into consideration all facts, it may:

• Affirm a decision (i.e. decide not to change the original decision),

• Vary a decision,

• Set aside a decision and substitute a new decision, or

• remit a decision to the decision-maker for reconsideration.

Parties to an ART review may appeal to the courts for a review of the ART’s decision. 

How the Courts Review Decisions

The Courts, on the other hand, review decisions to check whether the decision was made correctly under the law. The Courts do not focus on the outcome but focus on whether the law was used correctly to reach the decision under review. This process is called Judicial Review.

Once the Courts have reviewed the decision and find that the decision was legally incorrect, they will usually remit (send the case back) the case back to the ART to make the decision again by applying the correct law. One thing that must be noted is that it does not necessarily mean that the outcome will change.

If the Courts find that the decision was correctly decided and the law was correctly applied, the case/application will be dismissed for judicial review.

Find out more about the ART’s role, power, and jurisdiction.