H (CA580/2017) v REFUGEE AND PROTECTION OFFICER [2018] NZCA 188

H (CA580/2017) v REFUGEE AND PROTECTION OFFICER [2018] NZCA 188 [11 June 2018]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA580/2017[2018] NZCA 188BETWEEN H (CA580/2017)AppellantAND REFUGEE AND PROTECTION OFFICERRespondentHearing: 8 February 2018Court: Cooper, Brown, and Clifford JJCounsel: F M Joychild QC and D Mansouri-Rad for AppellantI C Carter and J A Cassie for RespondentJudgment: 11 June 2018 at 1.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The appellant, Mr H, is applying for refugee and protected person status underthe Immigration Act 2009 (the Act). In circumstances to which we return, a refugeeand protection officer (RPO) declined that application without interviewing Mr H.Mr H filed an application seeking leave to judicially review that decision. Mr H alsofiled an appeal in the Immigration and Protection Tribunal (the Tribunal) againstthe RPO's decision.[2] The RPO applied to the High Court to have Mr H's judicial review applicationdismissed for want of jurisdiction. The High Court granted that application.1 Mr Hnow appeals against that decision.[3] The question we must answer is whether a preliminary decision by an RPO todecline an adjournment of an interview and to proceed without hearing from theclaimant can be judicially reviewed without resort to the statutory appeal process.The key statutory provisions[4] Answering that question depends on the proper interpretation of s 249 ofthe Act. In general terms, s 249 defers judicial review of decisions under the Act,otherwise available under (previously) the Judicature Amendment Act 1972 and (now)the Judicial Review Procedure Act 2016, until appeal rights under the Act itself havebeen exhausted.[5] The key provisions are as follows:247 Special provisions relating to judicial review(1) Any review proceedings in respect of a statutory power of decisionarising out of or under this Act must be commenced not later than28 days after the date on which the person concerned is notified of thedecision, unless—(a) the High Court decides that, by reason of specialcircumstances, further time should be allowed; or(b) leave is required, under section 249(3), before proceedingsmay be commenced (in which case section 249(4) applies).249 Restriction on judicial review of matters within Tribunal'sjurisdiction(1) No review proceedings may be brought in any court in respect of adecision where the decision (or the effect of the decision) may besubject to an appeal to the Tribunal under this Act unless an appeal is1 H v Refugee and Protection Officer [2017] NZHC 2160, [2017] NZAR 1518.made and the Tribunal issues final determinations on all aspects of theappeal.(2) No review proceedings may be brought in any court in respect of anymatter before the Tribunal unless the Tribunal has issued finaldeterminations in respect of the matter.(3) Review proceedings may then only be brought in respect of a decisionor matter described in subsection (1) or (2) if the High Court hasgranted leave to bring the proceedings or, if the High Court hasrefused to do so, the Court of Appeal has granted leave.(4) An application to the High Court for leave to bring reviewproceedings must be made—(a) not later than 28 days after the date on which the Tribunal'sdetermination in respect of the decision or matter to which thereview proceedings relate is notified to the person bringingthe proceedings; or(b) within such further time as the High Court may allow onapplication made before the expiry of that 28-day period.(5) A decision by the Court of Appeal to refuse leave to bring reviewproceedings in the High Court is final.(6) In determining whether to grant leave for the purposes of this section,the court to which the application for leave is made must have regardto—(a) whether review proceedings would involve issues that couldnot be adequately dealt with in an appeal against the finaldetermination of the Tribunal; and(b) if paragraph (a) applies, whether those issues are, by reasonof their general or public importance or for any other reason,issues that ought to be submitted to the High Court for review.(7) A court that grants leave under subsection (3) to bring reviewproceedings must state the issue or issues to be determined in theproceedings.(8) Nothing in this section limits any other provision of this Act thataffects or restricts the ability to bring review proceedings.Background[6] Mr H is a Pakistani national. He left Pakistan in October 2015 and travelled toNew Zealand via stops in Fiji and Samoa. In March 2017, he made a claim for refugeestatus in New Zealand, on the basis he is at risk of being killed by the Taliban if hereturns to Pakistan. Section 135 of the Act provides that it is the responsibility ofclaimants to establish their claim for recognition. Claimants must therefore ensurethat before an RPO determines their claim they have provided all information,evidence and submissions that they wish to have considered.2[7] Where such a claim is made, an RPO must first determine whether to acceptthe claim for consideration. If the RPO does accept the claim, as he did in Mr H'scase, s 136 of the Act stipulates how that claim is to be determined:136 How refugee and protection officer to determine claim(1) For the purpose of determining a claim, a refugee and protectionofficer must determine the matters set out in section 137.(2) In doing so, the refugee and protection officer may seek informationfrom any source, but is not obliged to seek any information, evidence,or submissions further to that provided by the claimant.(3) The refugee and protection officer may determine the procedures thatwill be followed on the claim, subject to—(a) this Part; and(b) any regulations made for the purposes of this Part; and(c) any general instructions given by the chief executive.(4) To avoid doubt, the refugee and protection officer may determine theclaim on the basis only of the information, evidence, and submissionsprovided by the claimant concerned.[8] Section 149 of the Act provides RPOs with a number of specific powers toassist in the discharge of their statutory functions. Under subs (1)(f), an RPO mayrequire an applicant to attend an interview. Consistent with the Refugee StatusBranch's standard practices, the RPO scheduled an interview with Mr H for 10 May2017. In the letter scheduling the interview the following text appeared:It is very important that you attend this interview. If you are unable toattend because of illness and disability, please notify the [Refugee StatusBranch] Interpreter Coordinator immediately. You must also supply a medicalcertificate from a registered medical practitioner no later than 4.00 pm on theday of your scheduled interview. To be acceptable, the medical certificatemust specify:1. The date you were examined;2. Your illness or disability;2 Immigration Act 2009, s 135(2).3. The expected duration of the illness and disability;4. The reason, in the opinion of the medical practitioner, why youare unable to attend the interview; and5. The medical practitioner's opinion as to when you will be fit andable to attend an interview.If the [Refugee Status Branch] determines that the medical certificate meetsthe above criteria, the interview may be rescheduled. If you fail to attend yourinterview, the [Refugee Status Branch] will be unable to make any findings offact or credibility. Your claim will be determined on the basis of allinformation available to the [Refugee Status Branch].[9] That advice reflects s 149(4) of the Act, which provides:Where a person who is required to attend an interview fails to attend at theappointed time and place, the refugee and protection officer may determinethe claim or matter without conducting the interview.[10] On 9 May 2017, Mr H developed stress-related diarrhoea and a headache. Hesaw a GP, who provided him with a medical certificate saying he was unfit for oneweek from 9 May 2017. Mr H's lawyer contacted the RPO the next day, advising ofMr H's inability to attend the interview due to illness.[11] Mr H's lawyer emailed a copy of that medical certificate to the RPO later inthe day. The RPO replied that the medical certificate could not be printed, as it was inthe wrong format. There was also a possible issue, because it did not satisfy therequirements for cancelling an interview. The RPO advised he would discuss thematter with his manager the next day.[12] On 12 May 2017, the RPO issued his decision, declining Mr H's applicationfor refugee and protected person status. In that decision, the RPO first recorded thecircumstances in which Mr H had failed to attend his scheduled interview. The RPOconcluded that, as the medical certificate and accompanying documentation did notmeet the relevant criteria, s 149(4) of the Act applied. The RPO then reasoned:Having considered all the information available to the [Refugee StatusBranch] regarding Mr [H]'s claim to refugee and protection status and in hisabsence, no findings of credibility or fact can be made. As such, it cannot bedetermined whether Mr [H] is a refugee within the meaning of Article 1A(2)of the 1951 Convention relating to the Status of Refugees ("the Convention"),as amended by the 1967 Protocol. Nor can it be determined whether there aresubstantial grounds for believing that Mr [H] would be in danger of beingsubjected to torture as defined in Article 1 of the Convention Against Tortureand Other Cruel, Inhuman or Degrading Treatment or Punishment("Convention Against Torture"), or arbitrary deprivation of life or crueltreatment per Articles 6 and 7 of the International Covenant on Civil andPolitical Rights ("ICCPR")For these reasons Mr [H] is not recognised as a refugee within the meaning ofthe Convention. Refugee status is declined.[13] Four days later, Mr H's lawyer contacted the Refugee Status Branch,complaining that to decline Mr H's claim on a mere technicality relating to the formof medical certificate was unfair and unacceptable. The Refugee Status Branchaccepted that communication as a formal complaint.[14] The Refugee Status Branch responded to that complaint two days later. In thatletter, a branch manager concluded:Given the above [description of events], I acknowledge that there are genuinegrounds for complaint and in the circumstance, we would consider grantingyour client another interview.However the Act does not permit a decision of an RPO to be re-opened oncemade. Section 138(3) Immigration Act 2009 states this very clearly.3 I realisethat this does not assist your client nor resolve the above, but unfortunately,having notified the decision to him, the [Refugee Status Branch] is unable tonow retract or annul its decision.I have spoken to the RPO who acknowledges that the decision was, in thecircumstances, harsh. This letter and your correspondence regarding the complaint will be on yourclient's file should Mr [H] wish to appeal the decision.[15] Mr H subsequently filed his application for judicial review of, and his appealagainst, the RPO's decision. He framed his application for judicial review as achallenge to the RPO's decision to reject his medical certificate as being unreasonableand unfair.3 Section 138(3) provides that the decision of the RPO is final, unless overturned by the Tribunalon appeal.The High Court decision[16] The RPO applied for Mr H's judicial review application to be dismissed forwant of jurisdiction in reliance on s 249(1) of the Act. That section provides:(1) No review proceedings may be brought in any court in respect of adecision where the decision (or the effect of the decision) may besubject to an appeal to the Tribunal under this Act unless an appeal ismade and the Tribunal issues final determinations on all aspects of theappeal.[17] In granting that application, the High Court rejected Mr H's arguments that:(a) the decision he was seeking to review (the decision of the RPO to rejecthis medical certificate) was the exercise of a statutory power ofdecision-making that was distinct from the RPO's decision to declinehis claim; and that accordingly(b) it was not a decision which could be appealed to the Tribunal, and hisrights of judicial review were not affected by s 249 (but, rather, theywere recognised by s 247).[18] Rather, the Judge accepted the RPO's submission that the decision, in effectdetermining that Mr H had failed to attend his interview, could not be divorced fromthe RPO's final decision on Mr H's application. The Judge accepted the RPO'ssubmission that those circumstances were akin to those commented on by theSupreme Court in Tannadyce Investments Ltd v Commissioner of Inland Revenue,where the majority found that:4 a challenge to the legality of the process which led up to the making of thedisputable decision directly puts in issue the disputable decision. Hencethe challenge to that decision or its antecedence must follow the statutoryprocedure.[19] Here, Mr H's intended judicial review challenge directly puts in issuethe RPO's decision to decline his application. Accordingly, it came within the ambit4 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012]2 NZLR 153 at [59].of s 249. After all, if Mr H succeeded in his judicial review application any order forrelief would necessarily include an order quashing the final decision.[20] The Judge referred to authority to the effect that a de novo hearing, as wouldbe Mr H's appeal to the Tribunal, was a superior remedy for breach of natural justicethan judicial review.5 She also noted comments in a recent High Court decision, RM vImmigration and Protection Tribunal, recognising Parliament's very clear intentreflected in the scheme of the Act, to restrict the availability of judicial reviewproceedings in the immigration context.6 The Judge noted that s 249 was not aprivative clause: it did not preclude judicial review.7 There would be nothing to stopMr H reviewing the RPO's admittedly "harsh" decision once his appeal had beendetermined.8 Thus, this was not a situation where any abuse of power orunreasonableness represented by that decision would go unchallenged.[21] For all those reasons, the Judge also concluded that s 249 represented areasonable limitation on the rights to justice affirmed under s 27 of the New ZealandBill of Rights Act 1990 (the NZBORA), one demonstrably justifiable in a free anddemocratic society.9Appeal[22] On appeal, Ms Joychild QC for Mr H argued that what she characterised asthe High Court's "literal" construction of the word "decision" in ss 138(3) and 249(1)could not be correct. Given the scheme and purpose of the Act, reference to the word"decision" in those provisions was necessarily a decision made in conformity withthe Act. That is, after a consideration of the information and submissions provided bythe claimant. Thus, Ms Joychild shifted the focus of Mr H's challenge away fromthe RPO's decision to proceed to determine the claim without conducting an interview,to the decision he had made on the claim itself. As regards conformity with the Act,Ms Joychild argued that, properly interpreted, s 149(4) gave an RPO a discretion todetermine a claim without conducting an interview, where the person who had been5 At [6].6 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [41].7 H v Refugee and Protection Officer, above n 1, at [19].8 At [19].9 At [20].required to attend that interview had failed to do so without reasonable excuse. Here,Mr H had a reasonable explanation for his failure to attend the interview. The medicalcertificate, whatever criticism might have been made of its form, established that.The Refugee Status Branch had recognised the RPO's decision as being harsh.[23] Moreover, Ms Joychild submitted, the terms of the RPO's decision showed hehad not assessed Mr H's claim at all: he had in effect taken it off the table becauseMr H had not attended his interview. In making that submission Ms Joychild pointedto the RPO's reasoning that, as no findings of credibility or fact could be made becauseMr H had failed to attend his interview, it could not be determined whether he wasa refugee or not.[24] Ms Joychild emphasised the practical mischief that would occur if the RPO'sdecision was not reviewable. Mr H missed the opportunity of having his credibilityassessed first by the RPO in the interview and secondly by the Tribunal on appeal.The assessment of credibility was, in the context of applications for refugee andprotected person status, central to the decision. That loss of opportunity could not becured by the Tribunal's de novo appeal hearing. That was a substantive reason whyreview was appropriate, notwithstanding that Ms Joychild accepted the scheme ofthe Act in this area — including as amended in recent years — being to streamline theimmigration application and appeal processes, including through the operation ofs 149.[25] Mr Carter for the RPO adopted the submissions made for the RPO inthe High Court, and supported the Judge's reasoning. In doing so, Mr Carteremphasised the overall scheme and purpose of the Act in this area, as acknowledgedby Ms Joychild. The purpose of pt 7 of the Act, in which s 249 appears, is to providecomprehensively for a system of appeal and review in respect of decision-makingunder the Act. As part of that system, the Act ensures that persons in Mr H's positionreceive a de novo appeal. The Tribunal would be as well placed as the RPO wouldhave been to assess credibility. It was well-established that where a do novo appealright was available, exercise of that appeal right would normally cure any breach ofnatural justice or fairness and remove any continuing prejudice to the complainingparty in the original process.10 If Mr H's judicial review application proceeded asmatters currently stood, part of the Court's consideration would be whether or notrelief should be declined on the basis that the pending de novo appeal to the Tribunalwould cure any breach of natural justice in the RPO's decision. That is, it was ageneral principle that in some circumstances a court asked to exercise powers ofjudicial review might properly defer to the explicit statutory remedy.[26] Finally, it could not be assumed that having an applicant's credibility assessedon two occasions would necessarily be a benefit. Rather, any inconsistencies inevidence between the interview with the RPO and the hearing before the Tribunalcould count against Mr H.Analysis[27] The terms of s 249(1) of the Act direct us to the question of whether the reviewproceedings Mr H would bring are "in respect of a decision where the decision (or theeffect of the decision) may be subject to an appeal to the Tribunal under this Act ".[28] It is necessary to address that question in the context of the scheme and purposeof the Act as it applies to decision-making by RPOs and the rights of appeal and review(including to the Tribunal) that then arise. The enactment of the Act, and the way inwhich it has been subsequently amended, show Parliament's clear intent to streamlinethe procedures for the determination of applications under the Act, including bycreating a carefully designed appellate pathway and, in s 249, by postponing theopportunity for judicial review.[29] The essential features of decision-making by an RPO, once a claim forconsideration as a refugee or a protected person is accepted for consideration, are that:(a) The claimant has the responsibility to establish his or her claim(s 135(1)).10 Citing Singh v Attorney-General [2000] NZAR 136 (CA); and R v Accused (CA78/88) [1988]2 NZLR 385 (CA) at 387.(b) The claimant must ensure that, before the RPO makes a determinationon his or her claim, all material that the claimant would wish to haveconsidered has been provided to the RPO (s 135(2)).(c) An RPO may seek further information from any source, but is notobliged to do so (s 136(2)).(d) The RPO may determine the claim on the basis only of the information,evidence, and submissions provided by the claimant concerned(s 136(4)).[30] The s 149(1)(f) power to require an applicant to attend an interviewsupplements the provisions of s 136(2). The terms of s 136(2), and of s 136(4), makeit clear that an RPO is not required to interview a claimant.[31] Section 194 provides a right of appeal to the Tribunal against a decision byan RPO declining a person's claim for recognition as a refugee or protected person.Pursuant to s 198, the Tribunal must determine the matter de novo. The appellanttherefore has the opportunity to re-present his or her case afresh. Like an RPO,the Tribunal is not required to seek any information, evidence or submissions furtherto those provided by the appellant (s 198(5)).[32] The scheme for appeals to the Tribunal is similar to that for applications to anRPO:(a) It is the appellant's responsibility to ensure that all materialthe appellant wishes the Tribunal to consider is provided to the Tribunal(s 226(1)).(b) The Tribunal is, subject to agreement with the chief executive, to givethe chief executive notice of an appeal and the information provided bythe appellant. The chief executive must, in the time allowed bythe Tribunal for the purpose, lodge with the Tribunal any file relevantto the appeal or matter that is held by the Refugee Status Branch.The minister, chief executive or an RPO may also, in the time allowedby the Tribunal, lodge with the Tribunal any other information as he orshe thinks fit (ss 226(2) and (3)).(c) The Tribunal may seek information from any source but is not requiredto do so (s 228(1) and (2)).(d) The Tribunal may require the chief executive to seek and provideinformation relevant to the appeal and the chief executive must comply,to the extent practical, with such a requirement (s 229(1)).(e) The Tribunal must disclose to the appellant, and give the appellant anopportunity to rebut or comment on, any information the Tribunalreceives from any person other than the appellant that is or may beprejudicial to the appellant which the Tribunal intends to take intoaccount in determining the appeal (s 230(1)).[33] In that scheme, and in the context of this appeal, s 233 is of some importance.It provides:233 When Tribunal must or may provide oral hearing(1) The Tribunal must provide an oral hearing in the case of an appealagainst liability for deportation by a resident or permanent resident.(2) The Tribunal may, in its absolute discretion, provide an oral hearingin any other appeal against liability for deportation.(3) The Tribunal must provide an oral hearing in the case of an appellantor affected person currently or previously recognised as a refugee ora protected person, or a claimant for such recognition, unless—(a) the person was interviewed by a refugee and protection officer(or a refugee status officer under the former Act) in the courseof determining the relevant issue at first instance or, havingbeen given an opportunity to be interviewed, failed to takethat opportunity; and(b) the Tribunal considers that the appeal or other contention ofthe person—(i) is prima facie manifestly unfounded or clearlyabusive; or(ii) relates to a subsequent claim for refugee or protectionstatus.(4) The Tribunal may, in its absolute discretion, provide an oral hearingin the case of an appeal that relates to a subsequent claim for refugeeor protection status.[34] Section 233(3) applies in the case of Mr H's appeal, because he is a claimantfor recognition as a refugee. So, subject to the exception created by paras (a) and (b),the Tribunal must provide him an oral hearing.[35] Section 245 provides for appeals on points of law to the High Court with theleave of that Court or this Court. In turn, s 246 provides a further right of appeal, againwith leave, to this Court from any determination of the High Court on appeal to it.[36] Section 249 works by both deferring judicial review pending exhaustion ofappeal remedies and, once that has occurred, requiring any application to be madepromptly and with leave.[37] In determining any such leave application, the court is again directed toconsider the relationship between review at that stage, and the appeal rights that exist.Regard must be had to whether the issues an applicant would raise are ones of generalor public importance.[38] It is within that overall context that the application of s 249 in this case mustbe determined.[39] As already noted, in the High Court the focus was on the RPO's decision unders 149(4). In this Court, the focus was more on the RPO's decision in determiningMr H's claim under s 137, albeit on the basis that, because Mr H had not attended hisinterview no assessment of his credibility could be made.[40] Ms Joychild's argument was that that decision could not be seen to be adecision to which s 249 applied. We do not accept that proposition.[41] We acknowledge that the way the RPO worded his decision, namely thatbecause no findings of credibility or fact could be made "it cannot be determinedwhether Mr H is a refugee", opened the door to that submission:(a) First, s 129(1) of the Act provides that a person must be recognised asa refugee in accordance with the Act if he or she is a refugee within themeaning of the Refugee Convention. Refugee status is not granted, butrecognised.(b) Section 136 requires an RPO to determine a number of specific mattersset out in s 137 for the purpose of determining a claim. Those mattersare twofold:(i) again, whether to recognise the claimant as a refugee on thegrounds set out in s 129; and(ii) whether the claimant has the protection of another country orhas been recognised as a refugee by another country and can bereceived back and protected there without risk of being returnedto a country where he or she would be at risk of circumstancesthat would give rise to grounds for his or her recognition as arefugee or protected person in New Zealand.[42] The phraseology "cannot be determined" is a little at odds with the statutoryrequirement that a person must be recognised as a refugee if they are a refugee.Moreover, here the RPO simply did not make the determination required by s 137(4),albeit that there may be little purpose in that determination if the RPO has determinedthat a person is not a refugee.[43] Ms Joychild's submission in effect asks us to categorise the RPO's decision todecline Mr H's application as a nullity, and thus outside the ambit of s 249. InAnisminic v Foreign Compensation Commission their Lordships determined theapplicability of the relevant statutory privative provision on the basis that ifthe decision-maker had committed a material error of law it would have exceeded itsjurisdiction.11 That approach was followed in New Zealand in Bulk Gas Users Groupv Attorney-General.12 There, the Court of Appeal held that if the Secretary of Energyhad misconstrued legislation setting out the procedures to be followed prior to theexercise of certain statutory powers, then he would have committed an error of lawthat took him outside jurisdiction and therefore beyond the protection of the privativeprovision in question.13 More recently, and with the implementation of general rightsto appeal questions of law, the courts have moved away from that approach. AsJosh Pemberton notes, ultimately the ability to challenge decisions through statutoryappeal routes has rendered review less important.14 Thus, provisions that restrictedreview, but also provided appeal rights, were regarded as posing less of a threat tothe judiciary concerned with supervising administrative decision-making.15Accordingly, privative provisions were more likely to be given literal effect.16 Today,the effect of such a provision depends not just on the sort of error in question, but onthe availability and appropriateness of alternative mechanisms for challenging thedecision in question.[44] Nullity-based reasoning was rejected by this Court in Love v Porirua CityCouncil,17 where this Court adopted the reasoning of their Lordships in Calvin vCarr.18[45] Here, s 135 places the responsibility on the claimant to ensure all relevantmaterial is provided to an RPO. The RPO records in his decision the he had consideredall the material made available to him. In our view, the RPO's decision is properlyunderstood as saying Mr H had not established his claim for recognition. Thatdecision, irrespective of any possible challenge by reference to s 149(4), is effectiveon its terms until successfully appealed or reviewed. Any judicial review challenge tothat decision falls within the scope of s 249. Such a judicial review challenge is,therefore, postponed by the operation of that section until Mr H's appeal against that11 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL).12 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA).13 At 139.14 Josh Pemberton "The Judicial Approach to Privative Provisions in New Zealand" [2015] NZ LawRev 617 at 631.15 At 631.16 At 634.17 Love v Porirua City Council [1984] 2 NZLR 308 (CA) at 311.18 Calvin v Carr [1980] AC 574 (PC) at 589.decision has been determined. Obviously, if Mr H succeeds in that appeal, there willbe little or no point in pursuing judicial review.[46] Having reached that conclusion, we need to consider Mr H's appeal on thebasis of the way in which he framed his judicial review application and argued thematter in the High Court. The focus of the review application was on the RPO'sdecision pursuant to s 149(4) to determine Mr H's claim without conducting aninterview.[47] On one approach, it can be argued that s 249 does not apply to judicial reviewof a decision under s 149(4):(a) Section 249 postpones review proceedings in respect of a decision"where the decision (or the effect of the decision) may be subject to anappeal to the Tribunal" under the Act "unless an appeal is made andthe Tribunal issues final determination on all aspects of the appeal".(b) It is clear here that an RPO's decision under s 149(4) is not subject toan appeal under the Act (there being no so such right provided bythe Act).(c) Neither, it can be said, is the effect of such a decision. The effect of as 149(4) decision is that the RPO goes ahead and determines a claimwithout conducting an interview. By definition, the RPO having madethat decision could then accept or decline the claim.[48] That is to give the words in s 249 their plain meaning. But the meaning of astatutory provision must be determined in the context of the relevant scheme andpurpose. In effect, the High Court determined that, given the overall scheme andpurpose of the Act, the RPO's decision to determine the claim without conducting theinterview should be regarded as integral to his decision to decline the claim.[49] In doing so, Gordon J applied the principle expressed in Tannadyce in thefollowing way:19[12] I agree that the application for judicial review in the present case is,in substance, a challenge to the legality of the process which led up to themaking of the final decision. The application for judicial review states thatthe challenged decisions were unreasonable and/or made in breach of alegitimate expectation. However, H's complaint could equally be framed as achallenge to the final decision on the basis that there was a breach of naturaljustice and/or legitimate expectation.[13] Further, if H were successful in his application to review thechallenged decisions, then any order for relief would necessarily include anorder quashing the final decision. This supports the respondent's submissionthat the challenged decisions cannot be divorced from the decision to declinethe claim.[50] Although not referred to in the High Court decision, s 233(3) of the Actprovides strong support for that conclusion.[51] The Tribunal, we understand, generally holds oral hearings. But if whether itwas going to do so here — and, in that way, provide Mr H with the opportunity to havehis credibility assessed — became an issue, the Tribunal would be directed tos 233(3)(a)). Mr H would, no doubt, make the very argument he seeks to make in hisjudicial review proceedings. That is, he did not "fail to take" the opportunity for aninterview. Rather, there were valid health reasons which prevented him from doing so.[52] In our view, this confirms that the effect of the s 149(4) decision does fallwithin the scope of his appeal, and that s 249 applies accordingly.[53] Ms Joychild would point, nevertheless, to Mr H's loss of an opportunity tohave his credibility assessed twice. As the Crown submitted, however, a similarargument was addressed by this Court in Singh.20 Singh was concerned with thetwo-tier refugee decision-making process under the Immigration Act 1987. It appliedthe principle that a de novo appeal to the second tier Refugee Status Appeals Authoritywas capable of curing any breach of natural justice in the first-tier decision of theRefugee Status Branch. The importance of credibility assessment at both tiers of19 H v Refugee and Protection Officer, above n 1.20 Singh, above n 10.the refugee determination process was recognised, but was found to make nodifference to the application of the principle.[54] The Court reasoned:[15] The contention inherent in the first three stated grounds that it is notopen to deny the opportunity for review by the courts of a process even wherethe process will be repeated by an expert and independent tribunal, is contraryto authority as cited by Randerson J and to common sense. The preferableapproach is that of overall consideration as recognised by Tipping J inNicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385, 436:To my mind, the correct approach is this. This Court should firstidentify the error, or errors, which are said to vitiate the firstinstance decision. The second step is to examine what effect theappeal has had on the error, or errors, found at the first stage. Ifthe appeal has in substance removed the prejudice which wouldotherwise have resulted to the complaining party, the Courtshould exercise its discretion against relief, because overall nocontinuing prejudice from what went wrong at first instance canbe shown. Where, as here, there has been review by way of arehearing, which is said to have cured any earlier problems, Iwould put the onus on the applicant for judicial review todemonstrate continuing prejudice. It is only if there is continuingprejudice that the first instance error, or errors, have continuingrelevance. [55] Addressing the lost opportunity argument, the Court said:[17] Mr Hooker, although accepting that there will be circumstances inwhich a subsequent de novo hearing can be regarded as overtaking breachesof natural justice, contended for a compartmentalised approach to the twostages of consideration of applications for refugee status. We do not acceptsuch an approach is called for. The whole scheme of the legislation indicatesthe adoption of a process designed to ensure overall the fair consideration ofapplications in accordance with international obligations. There is nothing inthe legislation indicating any need to regard the process before the RefugeeStatus Branch as requiring special consideration separate from the scheme asa whole.[56] Those remarks apply equally to the current scheme of the Act, if not with evenmore force.[57] Finally, this Court in Singh also addressed the s 27 NZBORA argument.[18] We see nothing in s 27 of the [NZBORA] that requires any differentapproach. In practical terms the appellant will suffer no prejudice. NothingMr Hooker was able to submit to us gave us concern that the Authority willbe unfairly influenced on issues of credibility, particularly since, as the Judgepointed out, the appellant will be able to refer to the view expressed bythe Judge that arguably there was a denial of natural justice bythe Immigration Service. There is also assurance to be drawn from the recentdecision of the Authority referred to us by Mr Woolford in which in somewhatsimilar circumstances the Authority plainly reached its own view oncredibility in favour of the appellant: see Refugee Appeal No 71684/99,29 October 1999.[58] For our part, we have no reason to doubt that the Tribunal will thoroughly andindependently review all the circumstances of Mr H's appeal, including the fact hewas not interviewed by the RPO and the circumstances in which that occurred, beforemaking its decision. If Mr H is dissatisfied with the Tribunal's processes, he mayapply to review them. If he considers the Tribunal has erred in law, he may seek leaveto appeal.[59] We are therefore satisfied that the High Court was right to dismiss, as deferredby s 249, the judicial review Mr H seeks whilst his appeal remains undetermined.Result[60] The appeal is dismissed.[61] Mr H is legally aided and the respondent did not seek costs. We therefore makeno order for costs.Solicitors:Mansouri Law Office, Auckland for AppellantCrown Law Office, Wellington for Respondent