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High Court Cases
Legal Services Agency v Hosseini
High Court Auckland CIV2005-404-743;
(2006) 17 PRNZ 932
21 February 2006
Priestley J
Legal aid - decline of legal aid on grounds
of insufficient prospects of success - meaning of prospects of
success - nature of balancing exercise - whether duty on Legal Services
Agency to undertake detailed
analysis - Legal Services Act 2000, ss 3, 9(1) and 9(4)
Two Iranian nationals, having failed in
appeals to the Refugee Status Appeals Authority (RSAA), filed
proceedings in the High Court under the Judicature Amendment Act 1972
challenging the RSAA
decisions. The Legal Services Agency declined an application for legal
aid to fund those proceedings. The
two men requested a review by the Legal Aid Review Panel. That Panel
took the view that the Agency was
wrong to have declined a grant of legal aid and required the Agency to
reconsider its decision. The Agency
again declined to grant legal aid. On a further review to the Legal Aid
Review Panel it was again
determined that the Agency decision was wrong. The Agency appealed to
the High Court against the last
determination of the Panel. In the meantime, the judicial review
proceedings were heard in the High Court
and while they were dismissed, it was nevertheless the view of the
trial judge that important and certainly
tenable issues had been raised in those proceedings. Consequent upon
the High Court judgment the two
Iranian men were removed from New Zealand. The Agency continued to
refuse to pay the fee of the
solicitor who had represented the two men in the judicial review
proceedings. It maintained that those
proceedings had had no prospect of success and that legal aid should be
declined for that reason.
Held:
1 It is important not to
lose sight of the social policy that lies behind the Legal Services Act
2000. It is to
ensure that personal financial constraints do not disadvantage people
appearing before criminal Courts or
seeking access to civil Courts (see para [20]).
2 Counter-balancing the s
9(1) Legal Services Act 2000 statutory obligation to grant civil legal
aid the
Legal Services Agency has a countervailing obligation to refuse legal
aid under s 9(3) if the applicant has
not shown that he or she has reasonable grounds for taking or defending
the proceedings or being a party
to the proceedings. The Agency also has a statutory discretion to
refuse legal aid in the circumstances
stipulated in s 9(4) of the Act, including where the applicant's
prospects of success are not sufficient to
justify the grant of aid.
3 "Prospects of success"
refers to the prospects of achieving a successful outcome. Those
prospects
need to be assessed in a pragmatic way and in the circumstances of the
particular case. This is a
convenient but by no means inflexible measure to assist in the critical
balancing exercise between an
applicant's prospects of success in litigation, and whether or not to
exercise adversely to an applicant the
s 9(4) discretion to refuse legal aid in situations where there is
otherwise a mandatory obligation (s 9(1)) to
grant it. That discretionary exercise must be carried out against the
overarching s 3(a) purpose. It must
also be carried out with an appropriate regard for the context of the
litigation in which an application may
be embroiled (see paras [30] & [31]).
Timmins v Legal Aid Review Panel[2004]
1 NZLR 708 (Wild J) applied.
4 The balancing exercise
required on the present facts would have to factor in, not financial or
proprietal
considerations but instead a realisation that, although faced with
adverse credibility findings by the RSAA,
the applicants would, in terms of refugee jurisprudence, be faced with
a real chance of persecution on
their return to Iran if the Authority had got it wrong (see para [32]).
5 Against that background
and the factors which must inform the exercise of a s 9(4)(d)(i)
discretion, on
any analysis, the Agency's weighing of the situation was facile,
inadequate and wrong (see para [33]).
6 In the context of a
judicial review application seeking to attack an adverse finding to an
asylum-seeker,
the Agency's analysis was patently insufficient. Such insufficiency
clearly constituted a decision which was
manifestly unreasonable and/or wrong in law for the purposes of s 54(3)
of the Act (see para [38]).
Legal Services Agency v Rossiter(2005)
17 PRNZ 815 (CA) referred to.
7 The respondents faced
formidable difficulties in establishing, for the purposes of judicial
review
proceedings, that the RSAA decision was wrong. That, however, was not
the same as an assessment that
the proceeding was totally hopeless. At the heart of s 9(4)(d)(i) lay
the balancing exercise. As a matter of
law, it was incumbent on the Agency to advance a much more detailed
analysis if it wished to decline legal
aid on the statutory basis that, in the context of a refugee claim, the
respondents' prospects of success
were so slim that the grant of legal aid was not justified. Such an
analysis was absent (see para [43]).
Appeal dismissed.
Other cases mentioned in judgment
Calder v Canterbury District Legal Aid
Services Subcommittee [1999] NZAR 155 (Hansen J)
Gummer v Legal
Services Board (High Court Auckland, AP 38/SW00, 17 July 2000,
Williams J)
Legal Services Agency v K(High Court Christchurch,
CIV 2004-404-002675, 5 November 2004, Chisholm
J)
Counsel
GDS Taylor for the appellant
S Laurent for the respondents
[Editorial Note: A helpful commentary on this decision by Andrew Beck is to be found at [2006] NZLJ 175-178.]
PRIESTLEY J
The parties
[1] Grants
of legal aid and the administration of New Zealand’s legal aid scheme
are governed by the
Legal Services Act 2000 (“the Act”).
[2]
Central to the administration of legal aid is a statutory body
established by s 91, the Legal Services
Agency (“the Agency”). The Agency’s primary function (s 92(a)) is;
(a) to administer schemes in as consistent,
accountable, inexpensive, and efficient a manner as is
consistent with the purpose of this Act.
[3]
As is frequently the case with administrative bodies, decisions of the
Agency can be reviewed. For that
purpose s 62 establishes the Legal Aid Review Panel (“the Review
Panel”).
[4] s
54 stipulates the grounds on which a legally aided person, an applicant
for legal aid, or a legal aid
provider may challenge a decision of the Agency.
54 Grounds
for review
(1) An aided person or an
applicant for legal aid may apply to the Review Panel for a review of a
decision
of the Agency referred to in subsection (2) on the grounds that the
decision is:
(2) The decisions that may be reviewed are
decisions that affect the applicant for review and that relate to
any 1 or more of the following:
(3) A listed provider or former listed
provider may apply to the Review Panel for a review of a decision
relating to the amount payable by the Agency to that provider, on the
grounds that the decision isТ
(4) In this section, decision includes a
failure or refusal to make a decision.
[5]
On such a review a Review Panel, (which in terms of s 55A constitutes a
“team” assigned for review
purposes by the Review Panel’s convenor), may, under s 57(2) confirm,
modify, or reverse the Agency’s
decision. The Review Panel may also, instead of determining a review,
exercise its power under s 58(1) to
direct the Agency to reconsider its decision.
[6]
Section 59 permits the Agency or an applicant to appeal a Review
Panel’s decision to the High Court
on a question of law.
Background
[7] The first respondents are Iranian Nationals. They were
brothers-in-law. The second respondent was at
all material times their counsel.
[8]
Having arrived in New Zealand in September 2002 and March 2003
respectively, the first respondents
applied for refugee status relying on Article 1(A)(2) of the Refugee
Convention. They claimed they were
unable to return to Iran because of a well founded fear of being
persecuted on Convention grounds. Their
two refugee claims were processed in the normal way. Refugee status was
declined by the New Zealand
Immigration Service. The first respondents exercised their right of
appeal to the Refugee Status Appeals
Authority. The Authority released two decisions on 30 September 2003
dismissing the appeals.
[9]
The first respondents then initiated judicial review proceedings in the
High Court challenging the
Authority’s decisions.
[10]
It is the entitlement of the first respondents to legal aid which lies
at the heart of this appeal. Not once,
but twice, the Review Panel took the view that the Agency was wrong to
have declined a grant of legal aid
to fund the High Court judicial review proceedings. Instead of
accepting the Review Panel’s
determinations the Agency asserts it was right and the Panel was wrong.
Hence this appeal.
[11]
The first respondents’ judicial review applications were heard in the
High Court at Auckland before
Harrison J on 4 February 2004. A reserved judgment was issued on 16
March 2004 dismissing the
applications. At the heart of the judicial review applications was the
propriety of the Refugee Status
Appeals Authority’s conclusion that the factual narrative on which the
two claimants relied was not credible
and/or implausible.
[12]
It is unnecessary to refer to the detail of either the Refugee Status
Appeals Authority’s decisions or
the judgment of Harrison J. It is sufficient, however, to observe that
in the High Court, important, and
certainly tenable issues were raised by the second respondent as
counsel, dealing with the interface
between adverse credibility findings and administrative law principles.
Clearly Harrison J did not consider
the appeal to be futile as is apparent from the following passages of
his judgment.
[33] It follows from my rejection of each of
Mr Laurent’s grounds of challenge that O’s appeal must fail. I
add that one ground for the RSAA’s decision was its finding of material
inconsistencies between his
evidence given at the appeal hearing and on two previous occasions;
once in a lengthy and detailed
statement lodged with the RSB and later during an interview with the
RSB officer.
[34] This conclusion may have been sufficient
on its own to justify the RSAA’s decision. Unfortunately it
left the finding in a vacuum. The Authority did not attempt to use the
finding, as it would have been
entitled, as a discrete basis for concluding that O was not a credible
or reliable witness. Of itself, such a
finding would have provided a proper ground for dismissing the appeal.
Instead the Authority treated the
inconsistency as supporting the different ground of implausibility of
account (para 134). I have treated the
finding in that way.
... [55] Again, though, as in O’s decision,
the Authority did not treat the inconsistencies, as it was entitled,
as a foundation for concluding that L was not a credible witness whose
evidence justified rejection on this
ground alone. Plainly the RSAA had a proper basis for taking this step.
Its failure to differentiate the effect
of this adverse character finding from a discrete inferential finding
of implausibility of L’s account is
confusing. I can only assume that the Authority was meaning to make an
adverse character finding
unrelated to the separate question of the inherent implausibility of
O’s story. It appears as though the
Authority was meaning to say that it did not believe his evidence. If
that is the case, it would spell an
immediate and absolute end to this challenge. However, in case my
assumption is wrong, I must consider
the other grounds of Mr Laurent’s challenge.
...
[62] As with O’s appeal, Mr Laurent mounted a sustained attack upon the
RSAA’s decision. He submitted
that the sheer scale of implausibilities found by the Authority was
evidence that it fundamentally applied
itself to the facts. He submitted that it indicated a predisposition to
find a means to disbelieve and
ultimately decline the appeals. However, Mr Laurent disclaimed any
suggestion of bias. In this respect he
was wise.
[63] I am not satisfied that any of the
RSAA’s findings of implausibility of L’s account were not reasonably
open to it or that it was guilty of demonstrable errors of fact. To the
contrary, I am satisfied that the
Authority acted logically in drawing adverse inferences from L’s
account. It follows that I dismiss L’s
application also. By agreement between the parties there is to be no
order as to costs.
[64] I wish to express my appreciation to
both counsel for their skill and industry in arguing these
applications.
[13]
In the wake of Harrison J’s judgment the first respondents were removed
from New Zealand. They
thus have no direct interest in the outcome of this proceeding. Despite
a clear direction (infra para [19] )
from the Review Panel that the second respondent’s fee should be
covered by a legal aid grant, the
Agency has chosen to ignore that direction, has failed to pay Mr
Laurent’s fee, and has instead mounted
this appeal.
Relevant
decisions
[14] The Agency initially declined the first respondents’
application for legal aid on 28 January 2004. The
respondents, as they were entitled to under s 29, asked the Agency to
reconsider its decision. This the
Agency did and in a decision dated 14 April 2004 declined legal aid.
[15] From
that decision the respondents appealed to the Review Panel. A team of
two members Ms L L
Heah and Ms D Patchett, both of whom are experienced lawyers, reviewed
the Agency’s decision. They
issued a careful and comprehensive decision comprising 11 pages and 57
paragraphs on 3 September
2004. Pursuant to its powers under s 58(1) the Review Panel directed
the Agency to reconsider.
[57] The Panel accordingly directs the Agency
reconsider its decision to decline aid to the Applicants
taking into account the matters referred to in this decision but in
particular the following:
(a) The particular sub-sections in s 9 that
it seeks to rely on С that is whether it is s 9(3) and/or s 9(4)(d)(I);
(b) If it seeks to rely on s 9(3) then it
must adopt the test set out in Gummer (supra) (see paragraphs
44
and 45 above);
(c) In applying Gummer (supra), the
Agency is to consider whether it can be reasonably argued that the
Statements of Claim С as elaborated and supported by counsel’s
Memorandum С disclose no reasonable
cause of action. In that regard, the Agency is to take into account
that:
- the Statements of Claim were based on well
recognised grounds of judicial review С unreasonableness,
errors of law and mistake of fact. The facts in support of these
grounds of review were clearly and
sufficiently set out.
- there were in fact no striking out
applications.
- interim orders had been granted by the High
Court.
- there is nothing in the High Court Judgment
of 16 March 2004 to suggest that the applicants’ cases were
entirely or substantially without merit.
(d) If it seeks to rely on s 9(4)(d)(i), then
it must apply the test in Timmins (supra) (see paragraphs 46 and
47 above). It is to assess the sufficiency of prospects of success
against the benefits to the Applicants and
the costs of the judicial review proceedings.
(e) In considering the benefits of the
judicial review proceedings to the Applicants, the Agency is to have
regard to the Applicants’ belief that their safety is at risk of
serious harm should they return to Iran and the
matters raised by the Provider in paragraph 51 above.
[17]
The Agency duly reconsidered the matter. The result of its
reconsideration was conveyed to the
respondents’ counsel by letter on 7 October 2005.
The Agency has received the Legal Aid Review
Panel decision in the above matter. In accordance with
the direction to reconsider the decision to decline aid, the Agency
advises as follows.
Following the numbering in para 57 of the
decision:
a. The Agency should have relied on s 9(4)(e)
Legal Services Act 2000. The judicial review proceedings
are more akin to an appeal than an original decision. If, however, it
is wrong and judicial review
proceedings are original proceedings, then it relies on s 9(4)(d)(i).
b. Not applicable.
c. The Agency was correct in not accepting
that there were prospects of success sufficient to justify a
grant of aid. The High Court dismissed the application for judicial
review.
The test in Gummer is not what is
alleged in a statement of claim. The test is whether there were any
prospects of success. Clearly there were not because the application
was unsuccessful.
d. The test in Timmins is one of
reasonableness. That is a difficult test to apply when credibility is
at issued
as it was in this case. Where credibility is in issue a reasonable
person would take that into account in
determining prospects of success. The Agency has taken the applicants
(sic) problems of credibility into
account in assessing prospects of success, as insufficient to justify a
grant of aid.
e. The Agency has taken account of the
applicant’s (sic) fears of returning to Iran in the same way as did
the High Court. The (sic) do not affect its assessment that there were
never any prospects of success for
this application.
For these reasons aid is refused for the
judicial review proceedings.
[18]
In short the Agency appears to be of the view that the judicial review
proceeding had no prospect of
success and that legal aid should be declined for that reason.
[19]
From that second decision of the Agency the first respondents appealed.
The Review Panel’s
decision (the Panel comprising Mr D J Maze, Ms D Patchett and Ms
L Heah) was dated 14 December 2004. It is from that decision the Agency
appealed to the High Court. It
is helpful to set out in full the relevant part of the Review Panel’s
decision which, this time, reversed the
Agency’s decision and granted legal aid.
The Issues
[9] The issue before the Panel is whether the
Agency’s decision to refuse legal aid in light of the decision
in LARP 344/04 is either manifestly unreasonable or wrong in law.
The Law
[10] A decision is “manifestly unreasonable”
if it is shown “clearly and unmistakably” that the Agency’s
decision went beyond what was reasonable or was irrational or logically
flawed” (Legal Services Agency v
Fainu 19/11/02 Randerson J HC Auckland AP68/02).
[11] A decision may be wrong in law for a
variety of reasons. It may be wrong in law, for example, if it
derives from an inaccurate application or interpretation of a statute,
or is wrong in principle. It may be
wrong in law if a decision-maker has failed to take into account some
relevant matter or takes into account
some irrelevant matter, or if the decision depends on findings which
are unsupported by the evidence
(Legal Services Agency v Fainu(supra)).
[12] In Legal Services Agency v A and O(22/5/03
Hansen J High Court Christchurch CIV 2003/409/597 &
598) said at paragraph 11 that manifestly unreasonable meant “something
different from what is ‘wrong in
law’”, and would be made out “where it is shown, clearly and
unmistakably, that the decision made by the
Agency went beyond what was reasonable, or was irrational or logically
flawed”. His Honour also said that
“manifestly unreasonable” required “not only that the decision be found
to be unreasonable but that LARP
forms the view that the decision is so clearly unreasonable that the
intervention of the Panel is called for”.
His Honour added that, “the determination of what is ‘manifestly
unreasonable’ is to be made objectively
by the members of LARP, applying their judgment to the matter in
accordance with the principles stated,”
and that it was “not for LARP to substitute its view of what the
decision should have been for that of the
Agency”.
Discussion
Is s 9(4)(e) of the Legal Services Act 2000
(the Act) applicable?
[13] The Agency claims that judicial review
proceedings are in the nature of an appeal rather than original
proceedings and as such it should have relied on s 9(4)(e) of the Act
in the first place.
[14] The Panel is of the view that judicial
review proceedings are original proceedings, not appeals in
terms of s 9(4)(e). This is because:
Has the Agency correctly stated and applied
the test in respect of s 9(3) of the Act?
[15] The Agency’s letter of 7 October 2004 is difficult to comprehend
in parts. On one hand it specifically
eschews s 9(3) (in paragraph a and b) and yet refers to the test in Gummer(supra)
as though somehow s
9(3) was applicable. In referring to the test in Gummer
(supra), it appears to suggest that this test was
whether there were any prospects of success and “clearly there were not
because the application was
unsuccessful” (paragraph d).
[16] If the Agency is purporting to have
relied on s 9(3) of the Act - as it subsequently did in submissions to
the Panel С then it had incorrectly stated the test in Gummer (supra)
and failed to take into account the
matters in paragraph 57(c) of the Panel’s decision in LARP 344/04.
[17] As stated by Williams J in Gummer (supra),
the test in respect of s 9(3) of the Act (then s 34(1) of the
Legal Services Act 1991) is whether the claim is so “unmeritorious as
to be unlikely to survive striking out
applications” (at paragraph 14). It was in light of that test that the
Panel in LARP 344/04 directed the
Agency to take into account the matters in paragraph 57(c) of its
decision. Clearly the Agency did not take
these matters into account; not only has the Agency ignored them but it
has also erroneously and
simplistically equated the fact of the unsuccessful outcome of the
judicial review proceedings with there
being no reasonable grounds for taking the proceedings in terms of s
9(3) of the Act. The fact that the
proceedings were ultimately unsuccessful is only one of a number of
relevant factors that the Agency
ought to have taken into account in considering s 9(3) of the Act.
[18] The Panel therefore finds that the Agency was wrong in law in not
applying the correct test in respect
of s 9(3) of the Act and in failing to take into account the matters in
paragraph 57(c) in LARP 344/04. The
Panel further finds that had the Agency applied the right test and
taken into account those matters, then it
would have accepted that the Applicants had shown that there were
reasonable grounds for taking the
judicial review proceedings in terms of s 9(3) of the Act.
Has the Agency correctly stated and applied
the test in respect of s9(4)(d)(i) of the Act?
[19] In purporting to apply the test in Timmins(supra),
it is also clear -from the Agency’s letter of 7 October
2004 and its submissions to the Panel - that the Agency entirely or
largely focused on the prospects of
success. Its view was that there were no prospects of success as the
judicial review proceedings sought
to challenge credibility findings which were not amenable to judicial
review.
[20] In paragraph e. of the Agency’s letter
of 7 October 2004, it claims that it has taken into account the
Applicant’s fears of returning to Iran but stated that this did not
affect its assessment that there were never
any prospects of success. In the preceding paragraph (paragraph d) it
appears to suggest that a
“reasonable person” would determine that the prospects of success were
insufficient if credibility were at
issue.
[21] It is apparent that in focusing entirely
or largely on the prospects of success, the Agency failed to
undertake a balancing exercise in terms of weighing the likely benefits
against the likely costs - contrary to
the direction to do so in terms of paragraph 57(d) and (e) in LARP
344/04.
[22] It is worthwhile again to bear in mind
what was held by Wild J in Timmins (supra):
[23] As in its previous decision declining
aid, the Agency has again asked itself the wrong question.
Instead of asking itself the question in paragraph [35] of Timmins (supra), the Agency
asked itself “Will the
applicant win?”
[24] In this case the Applicants believed -
rightly or wrongly - that their lives and that of their wives were at
risk if they returned to Iran. Notwithstanding the RSAA’s finding that
there was not a real chance that they
would be persecuted if they returned to Iran, the fact remains that
they believed that they would be - and
this belief is supported by a number of factual matters that were
either accepted by the RSAA or not
specifically rejected by it - see paragraphs 12, 13, 14, 15, 19, 20 and
21 of LARP 344/04. The benefits
from the desired outcome of the judicial review proceedings - that is,
being able to remain in New Zealand
if the proceedings were successful- in these circumstances, must
therefore be highly significant relative to
the likely costs of the proceedings. The grant sought by the Provider
in this instance was $8,515.00 for
each Applicant although of course this may not be the amount that will
actually be approved (if aid is
granted) given that the two sets of proceedings were identical in many
respects.
[25] The Panel therefore finds that the
Agency was wrong in law in focusing entirely or largely on the
prospects of success and failing to weigh the likely benefits against
the likely costs in accordance with the
Timmins (supra) test.
[26] Given that the Applicants have met the
threshold test in s9(3) of the Act - that there were reasonable
grounds for taking the judicial review proceedings - the Panel finds
that had the Agency in considering
s9(4)(d)(i) of the Act correctly applied the test in Timmins
(supra) then it would have granted aid.
Was the Agency correct in law in its view
that the judicial review proceedings had no prospects of
success?
[27] In both its letter of 7 October 2004 and
submissions to the Panel the Agency appears to suggest that
no reasonable person would issue judicial proceedings in these
circumstances, given that the proceedings
involved a challenge to credibility findings which are not amenable to
judicial review.
[28] The Agency’s claim that credibility
findings are not susceptible to judicial review is not only contrary to
its earlier concession in this regard (see paragraph 32 of LARP 344/04)
but also contrary to law. The
Agency is also wrong in law in stating that the only basis for judicial
review of findings of fact is if there is
no evidence to support them.
[29] In the judgment that followed these
judicial review proceedings - O & L v Refugee Status Appeals
Authority & The Attorney-General (16 March 2004, Harrison J,
High Court Auckland,
CIV-2003-404-5724/5725) - Harrison J set out a number of relevant
principles applicable to judicial review
of RSAA decisions (at paragraph [4]):
[30] Much of the RSAA’s findings of facts
under challenge in these judicial review proceedings involved
implausibility findings. The legal principles cited above were
applicable to and relied upon by the
Applicants in these proceedings - as is evident from the Statements of
Claim and Memorandum filed in
support.
[31] Although the outcome of the judicial
review proceedings is relevant to assessing the prospects of
success, the fact that the judicial review application was unsuccessful
in the end does not mean in itself
that there were never any prospects of success or that the prospects of
success were insufficient to justify
a grant of aid.
Decision
[32] For the reasons set out above, the
Agency’s decision to decline legal aid for the judicial review
proceedings is therefore reversed. Legal aid is granted with the amount
to be determined by the Agency.
Discussion
[20] It is important not to lose sight of the social policy
that lies behind the Act. It is to ensure that personal
financial constraints do not disadvantage people appearing before
criminal courts or seeking access to
civil courts. The s 3(a) purpose of the Act is patently clear.
3(a) providing a legal aid scheme that
assists people who have insufficient means to pay for legal services
to nonetheless have access to them;
[21] The
threshold of “insufficient means” is ultimately a matter of government
policy. Thresholds are
stipulated which are, of necessity, arbitrary.
[22]
It is significant, that in terms of s9(1) an applicant for legal aid
whose disposable income does not
exceed the prescribed amount must be granted legal aid for civil
proceedings.
[23]
Counterbalancing the s9(1) statutory obligation to grant civil legal
aid the Agency has a countervailing
obligation to refuse legal aid under s 9(3).
9(3) The Agency must refuse to grant legal
aid if the applicant has not shown that he or she has
reasonable grounds for taking or defending the proceedings or being a
party to the proceedings.
[24] The
Agency also has a statutory discretion to refuse legal aid in
the circumstances stipulated in s
9(4).
(4) The Agency may also refuse legal aid to
an applicant in any of the following circumstances:
(e) in the case of an appeal (whether or not
in respect of proceedings in which the applicant has received
legal aid), the Agency considers that for any reason the grant of aid
or further aid is not justified.
[25]
Against that statutory framework it is difficult to see how any serious
criticism can attach to the
Review Panel’s (as opposed to the Agency’s) decision. The Review
Panel’s 3 September 2004 decision
first directed the Agency to clarify whether it relied on a s 9(3), s
9(4)(d)(i), or both declining legal aid.
[26]
The Agency’s 7 October reconsideration stipulated that it “should have
relied” on s9(4)(e). That, with
respect, is an untenable proposition given that no appeals lie from
decisions of the Refugee Status
Appeals Authority. The only redress, confirmed by explicit provisions
of ss 129Q(3) and 146A of the
Immigration Act 1957, is a judicial review application.
[27]
The review panel’s second direction was to stipulate, that if the
Agency sought to invoke its statutory
obligation under s 9(3), then it must adopt the high threshold test
adopted by Williams J in Gummer v
Legal Services Board (High Court Auckland, AP 38/SW00, 17 July
2000) that the claim was so
unmeritorious as to be unlikely to survive a strike-out application.
The Agency’s 7 October decision states
that the Gummer test is not applicable.
[28]
It then goes on in paragraph (d) of its decision to conflate the Gummer
test with the Timmins test.
What the Review Panel said in paras 15-18 of its decision (supra)
strikes me as a correct analysis, quite
apart from which, if the Agency decided Gummer was inapplicable
it was clearly wrong to turn to the issue
of “reasonable grounds” under another guise.
[29] The
Agency’s 7 October decision, despite asserting that it was going to
rely on s 9(4)(e), seems in
large measure instead to justify the outcome on s 9(4)(d)(i) grounds.
Its justification for concluding that the
judicial review application had insufficient prospects of success to
justify the grant of legal aid was stated
as being:
a) The respondents’ credibility problems,
resulted in an assessment that the prospect of success was
insufficient.
b) The respondents’ fears of returning to
Iran had been considered in similar vein to the consideration
given to those fears by the High Court, but did not alter the
assessment that the proceeding “never” had
any prospect of success.
[30] Section
9(4)(d)(i) of the Act has been subjected to judicial scrutiny by Wild J
in Timmins v Legal Aid
Review Panel[2004] 1 NZLR 708. Wild J considered the words
“prospects of success” and helpfully
suggested a pragmatic yardstick, all the while accepting that each
particular case was different.
[33] “Prospects of success”, in my view,
refers to the prospects of achieving a successful outcome. Those
prospects need to be assessed in a pragmatic way and, somewhat
obviously, in the circumstances of the
particular case. After all, no two cases are the same. The assessment
invited by the words in s 9(4)(d)(i),
“sufficient to justify the grant of aid”, involves weighing the likely
benefits against the likely costs. Whilst
the benefits in some cases will be measurable mainly, and perhaps even
wholly, in dollar terms, in other
situations that will not be so. Examples might include obtaining an
injunction restraining the destruction of
an area of native bush, or the closing of a road or access track or
some other facility, or a judgment
upholding the reputation of a person or a product (even if
unaccompanied by significant damages), or
vindicating some important point of principle.
[34] Because assessing “prospects of success”
may involve assessing non-pecuniary benefits, the
assessment for a particular plaintiff or claimant can obviously be
difficult.
[35] I agree with Mr Taylor’s suggestion that
inquiring what a person funding him or herself would do may
be helpful. The question might be framed thus: What, if any, legal
action would the applicant (assuming
they were a reasonable individual) take in the circumstances if paying
their own legal costs?
[36] If the applicant is on the receiving end
of a proceeding or claim (that is, is a defendant or respondent),
the assessment of “prospects of success” takes on a different
complexion. The concept of achieving a
successful outcome remains intact. The question can still be posed in
the same terms: What, if any, legal
action would the applicant (as a reasonable individual) take in the
circumstances if paying the costs of
their own defence? But, as opposed to maximising the benefits or
“takeout”, the issue becomes one of
minimising the damage or loss. In colloquial language the question
becomes: How best can I get out of
this? The psychological benefits of resolving the claim (for example,
an end to the stress, worry and
distraction of being sued), and resolving it sooner rather than later,
need to be factored in.
[31]
These comments are, with respect, helpful. They provide a convenient
but by no means inflexible
measure to assist in the critical balancing exercise between an
applicant’s prospects of success in
litigation, and whether or not to exercise adversely to an applicant
the s 9(4) discretion to refuse legal aid,
in situations where there is otherwise a mandatory obligation (s 9(1))
to grant it. That discretionary
exercise, of course, must be carried out against the overarching s 3(a)
purpose. It must also be carried
out with an appropriate regard for the context of the litigation in
which an application may be embroiled.
[32]
The balancing exercise required here would have to factor in, not
financial or proprietal
considerations but instead a realisation that, although faced with
adverse credibility findings by the
Refugee Status Appeals Authority, the first respondents would, in terms
of refugee jurisprudence, be
faced with a real chance of persecution on their return to Iran if the
Authority had got it wrong.
[33]
Against that background and indeed the factors which must inform the
exercise of a s 9(4)(d)(i)
discretion, on any analysis, the Agency’s weighing of the situation was
facile, inadequate, and wrong. In
contrast, the Review Panel’s assessment of the situation in paras 19-31
of its decision (supra) strike me
as being correct. But for the fact that Mr Taylor has made submissions
to the contrary, it would be
unnecessary to expand this judgment any further. In fairness, Mr
Taylor’s submissions must be
addressed.
[34]
Counsel’s first point is that the Review Panel misinterpreted Gummer
v Legal Services Board(supra);
that in fact Williams J had been considering not only the predecessor
of s 9(3) but also s 9(4)(d)(i) issues.
In counsel’s submission the Review Panel had taken a РsnippetП of
Williams JМs judgment and
misdirected itself.
[35]
Dealing with s 34(1) and s 34(3) of the now repealed Legal Services Act
1991, (which provisions are
not substantially different from s 9(3) and s 9(4) of the Act) Williams
J had this to say:
... the test under s 34(1) is more stringent
than that under s 34(3): the former mandatorily requires
applications to be declined unless applicants show “reasonable grounds”
for bringing or defending
proceedings whilst that under s 34 (3)(e)(i) gives a discretion to
decline aid if the “prospects of success
are not sufficient” to justify a grant from the public purse.
Applications which fail the s 34(1) test must
therefore necessarily fail the s 34(3) test. So, in one sense, the s
34(3) test could be regarded as
subsumed in that under s 34(1). The test under s 34(1) is similar to
that under RR 186(a) and 477(a). By
way of analogy, it would appear that the Legislation debars the
expenditure of public money in supporting
claims or defences which are so unmeritorious as to be unlikely to
survive striking-out applications whilst
the test under s 34(3) is less strict and requires those charged with
the granting of aid in relation to claims
brought or defended on reasonable grounds to exercise their discretion
in assessing whether the
prospects of success are sufficient to commit public money to them.
[36]
I do not consider that the Review Panel has misdirected itself in its
assessment of the relevance of
Gummer and s 9(3). The s 9(3) and s 9(4)(1) tests are discrete.
Different criteria apply to each.
[37]
Mr Taylor’s second submission was that the Review Panel had in effect
ignored or read down the
statutory criterion of “prospects of success” contained in s 9(4)(d)(i)
in its analysis of Timmins v Legal Aid
Review Panel. In counsel’s submission, in a situation where both
the Agency’s grants officer and senior
grants officer, although not expressly addressing s 9(4)(d)(i), had
concluded that the judicial review
proceeding had no reasonable chance of success, the Review Panel had
wrongly substituted its own
judgment for that of the Agency and in particular had “seized on” some
dicta of Wild J to exclude the
concept of “prospect of success” from s 9(4)(d)(i) .
[38] I disagree. For the
reasons I have stated, particularly in the context of a judicial review
application
seeking to attack an adverse finding to an asylum seeker, the Agency’s
analysis was patently insufficient.
Such insufficiency clearly constitutes a decision which is manifestly
unreasonable and/or wrong in law for
the purposes of s 54(3). (See generally Legal Services Agency v
Rossiter (2005) 17 PRNZ 815). I reject
the suggestion that the Review Panel has misunderstood or ignored the
centrality of “prospects of
success” s 9(4)(d)(i), nor has it distorted the approach mandated by Timmins.
[39] Counsel’s
third submission was that the Review Panel, in paras 27-31 of its
decision (supra - dealing
with “prospects of success”П) had oversimplified or indeed ignored the
legal obligation cast on the Agency
to assess independently the prospects of the respondents succeeding
through judicial review proceedings
by an attack on adverse credibility findings.
[40]
In support of this submission Mr Taylor relied on a judgment of
Chisholm J, Legal Services Agency v
K(CIV 2004-404-002675, Christchurch, 5 November 2004), in which His
Honour rightly observed that a
decision of the Agency relying on s 9(4)(d)(i) inevitably involved some
assessment of the merits of a case
“albeit at a relatively superficial level”. I agree, but a merits
assessment is but one of the factors in the
balancing exercise required before the statutory discretion can be
adversely exercised. I do not consider
that the paragraphs of the Review Panel’s decision of which Mr Taylor
complains have trivialised or
misstated the issues involved.
[41]
Counsel’s fourth submission was that the Review Panel had misunderstood
the thrust of Article 1A(2)
of the Refugee Convention in para 24 of its decision and had wrongly
concluded that a well founded fear
of persecution was a subjective rather than an objective test.
[42]
Even if this submission had merit, it is clear from the structure of
the Review Panel’s decision that
para [24] is not determinative of the outcome. In my judgment counsel’s
submission is semantic only. Of
course the subjective beliefs of an asylum seeker cannot possibly be
determinative of the outcome. The
fear of persecution must be well founded. In para [24] the Review Panel
was doing no more than pointing
out the first respondents’ subjective beliefs had some factual basis of
support. A full analysis of the factual
matrix was conducted by Harrison J in his determination of the judicial
review proceedings.
[43]
I accept that the first respondents faced formidable difficulties in
establishing, for the purposes of
judicial review proceedings, that the Refugee Status Appeals Authority
decision was wrong. That,
however, is not the same as an assessment that the proceeding was
totally hopeless. At the heart of
s9(4)(d)(i) lies the balancing exercise to which I have already
referred. As a matter of law, it was
incumbent on the Agency to advance a much more detailed analysis if it
wished to decline legal aid on the
statutory basis that, in the context of a refugee claim, the first
respondents’ prospects of success were so
slim that the grant of legal aid was not justified. Such an analysis
was absent.
[44]
The final submission advanced by Mr Taylor is an important one. It
relates to the status of the second
respondent to seek a review of the Agency’s decision under s54 in the
name of the first respondents.
[45]
The review application which led to the Review Panel’s 14 December 2004
decision was signed by Mr
Laurent and dated 8 October 2004. At that stage, of course, the
proceedings had been determined and
the first respondents had been removed from New Zealand.
[46]
Section 54(1) confers a statutory right to apply for review of a
decision of the Agency on an aided
person or an applicant for legal aid. The statutory grounds are that
the Agency’s decision was manifestly
unreasonable or wrong in law.
[47]
Section 54(3) confers on a listed provider or former listed provider
(there being no dispute that Mr
Laurent as counsel falls into this category) the right to apply for a
review on the same statutory grounds “...
of a decision relating to the amount payable by the Agency to the
provider....”
[48]
Mr Taylor’s submission is the limited ground on which a legal provider
can seek a review precludes
Mr Laurent from lodging an appeal on behalf of the first respondents.
The challenge was to the Agency’s
refusal to grant legal aid, not to the quantum of a sum payable to the
provider. Therefore, in counsel’s
submission, Mr Laurent had no standing to mount an appeal and the
Review Panel should have declined
jurisdiction.
[49]
Amplifying that submission counsel stated that because the judicial
review proceedings had been
completed some nine months before the Agency’s decision was reviewed by
the Review Panel, the review
could not impact on representation of the first respondents, nor could
it impact on their pockets. Only the
second respondent was adversely affected by the Agency’s decision but,
in terms of s54(3) Mr Laurent
could not challenge on his own initiative the Agency’s refusal to grant
legal aid.
[50]
In support of this submission Mr Taylor cited Calder v Canterbury
District Legal Aid Services
Subcommittee [1999] NZAR 155.
[51]
What John Hansen J had before him in that case was an application for
judicial review of a Legal
Services subcommittee decision limiting counsel’s fees and excluding
other costs in respect of two
criminal trials in which Ms Calder was ultimately acquitted of murder.
[52]
In a judicial review context there were a number of issues before the
Court, including delay. The two
homicide trials had taken place between September 1995 and April 1996.
The relevant legal aid decisions
were made during 1995 with payments stretching to 1996. The judicial
review proceedings were not
commenced until July 1997.
[53]
His Honour reviewed a number of English authorities and concluded,
rightly in my respectful view,
that the plaintiff Ms Calder had no personal interest in the claim by
counsel and therefore no locus standi.
His Honour, striking out relevant portions of the statement of claim
stated (at 166):
“Effectively, what is being said is that
where it is a solicitor or counsel who is seeking a benefit from the
judicial review, they are the people that should bring the review with
any attendant litigation risk. There is
simply no interest by the legally aided person in the application.”
[54]
Although there is a superficial similarity between this dictum and
counsel’s submission, I see the
current situation as being totally different.
[55]
The first respondents retained counsel to run their judicial review
proceeding which challenged
adverse decisions of the Refugee Status Appeals Authority. They sought
a grant of legal aid for that
purpose. As is frequently the case, the first respondents relied on the
second respondent to complete and
process their legal aid application.
[56]
Their application was declined. After an unsuccessful reconsideration,
an application to review the
refusal of legal aid was made on 11 April 2004 (which Mr Taylor does
not seem to challenge). The matter
was referred back to the Agency for reconsideration which led to the
Agency’s 7 October 2004 decision
and the subsequent second application to the Review Panel.
[57]
The application for review dated 8 October 2004 is signed by Mr Laurent
“for client”. The application
for review was not sought by Mr Laurent personally but by each of the
two first respondents.
[58]
In that situation I have no hesitation in concluding that the
applications for review lodged by Mr
Laurent on 8 October 2004 were in his capacity as the first
respondents’ counsel and pursuant to his
ongoing retainer as counsel both in respect of the judicial review
applications which were filed in October
2003, and in respect of his instructions to process the first
respondents’ legal aid application first
submitted on 28 November 2003.
[59]
This is not a situation in which Mr Laurent was personally seeking to
review the quantum of legal aid
under s 54(3) in his capacity as a listed provider. Rather it is a
situation where his general retainer as the
first respondents’ counsel led to him filing an application for review
under s 53(1) on their behalf.
[60]
For these reasons, counsel’s submission relating to the status of Mr
Laurent and the jurisdiction of
the Review Panel to entertain the appeal is rejected. The situation is
very different from counsel mounting
a judicial review application in the High Court to augment a
fee as was the case in Calder.
Result
[61] For the reasons I have stated I am satisfied the decision
of the Legal Aid Review Panel dated 14
December 2004 is correct. It contains no errors of law. Accordingly the
appeal pursuant to s 59 of the
Legal Services Act 2000 is dismissed.
Costs
[62] The respondents in my judgment are entitled to costs. Given
that the Agency has not paid a cent of
the legal aid costs of the $8,515 estimate sought in November 2003,
despite the clear and correct
decision of the Review Panel dated 14 December 2004, I currently am
inclined to the view that the
respondents’ full costs on this appeal should be paid by the appellant
rather than a lesser sum pursuant to
the appropriate scale under the High Court Rules.
[63]
I further note that in her judgment of 12 May 2005, Potter J, dealing
with an application by the
appellant to lodge this appeal out of time, ordered the appellant to
pay 2B costs in any event on that
application. Whether or not the appellant has complied with that order
I know not.
[64]
I thus direct that Mr Laurent, within 14 days, is to file and serve a
memorandum specifying what costs
he seeks and on what basis. The appellant is to reply (assuming the
issue of costs cannot be resolved
between counsel) within 14 days thereafter by memorandum. The Registrar
is directed to refer all
memoranda to me for final determination assuming that counsel are
content for costs to be dealt with by
me in chambers without a formal hearing.
Solicitors for the appellant: Bartlett
Partners (Wellington)
Solicitors for the respondents: Laurent
Law (Auckland)