MA V LEGAL SERVICES AGENCY HC AK CIV 2008-404-6803

MA V LEGAL SERVICES AGENCY HC AK CIV 2008-404-6803 11 December 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-6803BETWEEN MA Appellant AND LEGAL SERVICES AGENCY Respondent Hearing: 23 April 2009 Appearances: R J Hooker for Appellant G D S Taylor for Respondent Judgment: 11 December 2009JUDGMENT OF KEANE JThis judgment was delivered by Justice Keane on 11 December 2009 at 4pm pursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy Registrar Date:Solicitors: Vallant Hooker & Partners, P.O. Box 47088, Ponsonby, Auckland Counsel: G D S Taylor, P.O. Box 5294, Lambton Quay, Auckland[1] On this appeal MA seeks to have set aside as wrong in law the decision of the Legal Aid Review Panel, dated 19 September 2009, upholding the decision of the Legal Aid Agency, dated 14 November 2007, declining him aid to pursue an appeal he has before the Court of Appeal. [2] The Review Panel, MA contends, abdicated its function. To decide whether the Agency was wrong in law or manifestly unreasonable the Panel had first to assess the merit of his substantive appeal. It did not do so. It accepted uncritically the decision under appeal and the Agency's decision. Yet each concerned, directly or indirectly, his refugee status. Each called for the closest scrutiny. He contends also for lesser discrete errors.Context[3] MA, an Afghani, entered New Zealand in 1995 and claimed refugee status. He was granted permanent residence and in 1997 became a New Zealand citizen. In January 2006 he was served with a notice under the Immigration Act 1987, the effect of which was to put in issue before the Refugee Status Appeals Authority whether he had ever been entitled to refugee status and, thus, whether he was entitled to retain his New Zealand citizenship and was liable to be deported. [4] The notice relied on a contrast made between MA's 1995 claim to refugee status and documents seized, when the police twice searched his home in early 2000 in an inter-agency operation that included the Refugee Status Branch of the Immigration Service, concerned with people smuggling and immigration fraud. MA was charged but not prosecuted. The significance now of the documents seized, if any, lies in the contrast made in the notice. [5] In 2006 MA, assisted by a grant of aid, sought in this Court declarations, three essentially, the effect of which, if granted, was that the contrast relied on in the notice was impermissible. He sought a declaration that the two 2000 searches were unlawful, the first especially, because, as he contends, it was made without warrant. He sought declarations, secondly, that any documents seized from the consultancy that assisted him to obtain refugee status in 1995 were privileged and, thirdly, that the police had no right, indeed were in breach of their duty, when they passed copiesof documents seized, and others held, to the Refugee Status Branch. To halt the inquiry into his refugee status he sought injunctive relief. [6] In a decision dated 21 September 2007 Priestley J denied MA any relief and he appealed to the Court of Appeal. On 14 November 2007, however, he was denied by the Legal Services Agency any further grant of aid. The Agency held that MA's grounds of appeal, those rejected by Priestley J in the decision under appeal, had no prospect of success; and it added this:We are not prepared to fund any further attempts to impede the process under the Immigration Act by raising technical arguments in the Courts.[7] On 6 March 2008 the Legal Aid Review Panel set aside the Agency's decision and granted MA aid for the appeal. The Panel found each of MA's grounds of appeal arguable and held that the Agency, in declining aid, took into account an irrelevant factor when it described those grounds as nothing more than impeding technicalities. That, the Panel held, was an error of law. [8] On 4 July 2008, on an appeal by the Agency, Wylie J held that the Panel had misconstrued the Act. It had failed to take into account the breadth of the Agency's discretion as to appellate aid. That discretion was not limited to whether the grounds of appeal were arguable. Moreover, Wylie J held also, instead of limiting itself to whether the Agency's decision was manifestly unreasonable or wrong in law, the Panel had substituted its own view. He remitted the review back to the Panel. [9] On 19 September 2008 the Panel, differently constituted, this time upheld the Agency. The Agency's decision to decline aid on the appeal was not, the Panel held, either manifestly unreasonable or wrong in law. Now, MA appeals that second decision, contending that the Panel was wrong in law in failing to assess for itself his grounds of appeal, before deciding whether the Agency was wrong in law or manifestly unreasonable. More especially was that so, he contends, because each of those decisions concerned, directly or indirectly, his refugee status. [10] On this appeal, the Agency contends, MA seeks to cut across Wylie J's decision on the first appeal setting aside the first Panel decision; and, in part at least,he is estopped from doing so by Wylie J's findings of law. That apart, the Agency contends, he seeks to impose on it and on the Panel duties that neither has to assess his substantive grounds of appeal as if each were hearing the appeal itself. [11] Because appellate aid is in question, the Agency contends, it had as Wylie J confirmed a wide discretion, and it was under no statutory duty to provide reasons. In prudence it had only to give sufficient reasons to show that it was neither wrong in law nor arbitrary. On review the Agency contends, the Panel was confined to deciding those two questions and, under the statute, it had only to give brief reasons. The appeal to this Court is confined to whether the Panel itself erred in law. [12] The appeal to the Court of Appeal was at the date of the hearing of this appeal provisionally set down for May. This appeal was heard on the basis that the substantive appeal would be prosecuted, whether in May or later, and whether or not this present appeal was granted. There was an issue whether this decision should await the outcome of the substantive appeal. But that was neither necessary nor desirable. The two appeals touch, but they are quite distinct. [13] MA's application for appellate aid does rest, of course, principally, if not solely, on his prospects of success on his substantive appeal; on whether his grounds of appeal are, as he says, both arguable and worthy of being considered by the Court of Appeal. Simply to set the scene I begin there.Substantive grounds of appeal[14] In his notice of appeal to the Court of Appeal MA first challenges Priestley J's finding that the two searches of his home in early 2000, the first especially, were unlawful and his related finding that the police were entitled to seize any documents discovered. In this, he contends, Priestley J erred in law and fact. [15] There is no presumption in law, he contends, as Priestley J held there is, that the searches made were valid unless he himself established that they were invalid and that there had been a miscarriage of justice. Such a presumption, he says, cannot begin to be reconciled with the New Zealand Bill of Rights Act 1990.[16] There is no basis, he contends, for Priestley J's finding that the first search was made on warrant. There is no evidence of an application or that a warrant was ever issued. All he himself ever saw was a purported copy. Priestley J was also wrong, he says, to hold that he had accepted the searches were lawful. Because the charges against him were withdrawn he had no cause to challenge the lawfulness of the searches until he was served with the notice in 2006. [17] In his second ground of appeal MA challenges Priestley J's conclusion that the police were entitled to seize the documents that passed in 1995 between Refugee and Migrant Services and himself as to his refugee status. He was entitled, he contends, to claim privilege analogous to legal professional privilege. [18] As a refugee, entitled to protection under the Convention relating to the Status of Refugees, made part of our domestic law as Schedule 6 of the Immigration Act 1987, he was entitled to speak in confidence to the consultancy then advising him, uninhibited by any risk that what he said might get out. Had his application been declined, had he been repatriated, his life might have been at risk. [19] Thirdly, MA contends on the substantive appeal, Priestley J was wrong in law and fact to hold that the police were entitled to pass copies of all the documents seized, and the record of his police interview in 2000, to the Refugee Status Branch. That was in breach of confidence and of reg 7 of the Police Regulations 1992. The documents contain no direct evidence of any offence against the Immigration Act 1987. They only assume significance when compared with those the Refugee Status Branch already held.Agency decision under appeal[20] The second point of reference for this appeal has to be the Agency's decision to decline aid for the purpose of the substantive appeal, even though aid had been granted in the first instance. That decision, which is set out in a letter dated 14 September 2007 to MA's solicitors, is best seen as a whole. It does, however, take MA's grounds of appeal out of order. It deals with the second, concerning the claim to privilege, first:The application is declined under s 9(4)(e) of the Legal Services Act 2000. Having regard to the merits of the appeal and the strength of the arguments, we do not consider that a grant is justified. See Legal Services Agency v Brown (2005) 17 PRNZ 525. With reference to the grounds set out in your letter there is no authority for the proposition that litigation should extend to immigration consultants. We are not persuaded that there is any prospect of the Court of Appeal upholding that ground of appeal. As to the second issue, in R v Thompson (2001) 1 NZLR 129 the Court of Appeal held that the presumption that search warrants are valid is not displaced by the omission to preserve the original record after the event. On the evidence before him, Priestley J was satisfied that a warrant was issued by the Wellington District Court in 2000 and that ground for the warrant existed. As the Judge pointed out, the presumption of validity exists unless the contrary is proved. There is no suggestion of a miscarriage of justice or abuse of process. We see no chance of that argument succeeding. You contend that any examination of the documents shows that they were somewhat innocuous. If that is so, we wonder why so much time and cost has been expended to attempt to exclude them from the process under s 129L(1)(b) of the Immigration Act. In any event, as Priestley J observed, the integrity of the New Zealand Refugee claims process and the public interest in ensuring that fraudulent claims can be properly dealt with must outweigh the confidentiality arguments. This policy does not rest on how innocuous the documents supposedly are. It is fanciful to think that the Court of Appeal would overrule this part of the High Court judgment. We are not prepared to fund any further attempts to impede the process under the Immigration Act by raising technical arguments in the Courts. Priestley J delivered a clear and compelling judgment which was against your client by a wide margin. We would consider an application for aid for the refugee proceedings under the Immigration Act.[21] This decision was vindicated in part by Wylie J, in his 4 July 2008 decision, setting aside that of the first Panel. He held that Panel had failed to understand the breadth of the Agency's discretion on a claim for appellate aid, and had substituted its own view. To that extent, as the Agency now says, Wylie J's decision bound the second Panel and is relevant equally on this appeal.Decision under appeal[22] Finally, and for completeness, I set out MA's three grounds for seeking to have the Agency's decision set aside on review, as the second Panel found them to be, and that Panel's response to each, beginning with the first concerning the validityof the searches.Validity of searches[23] The Panel summarised MA's first ground of appeal against the Agency's decision in this way:The Agency's assertion that R v Thompson (above) applied to the facts of the applicant's case is wrong. In R v Thompson (above) the omission was a failure to preserve the affidavit that had been filed in support of the search warrant. However, the original affidavit could be reconstituted and a copy of the search warrant that was issued was found. Both the police and the Court staff could give evidence of the search warrant having been granted. In the applicant's case there is no evidence that a search warrant had even been applied for let alone granted. The High Court accepted the applicant had been shown a signed copy of the search warrant even though the evidence, from both the applicant and the police, was that he was shown an unsigned copy. This is a matter that should go to the Court of Appeal. The presumption of validity would be contrary to the Bill of Rights. The Agency has misinterpreted the facts of the case, as the Judge did, and the resulting decision is manifestly unreasonable and wrong in law.[24] As to this ground, the Panel said this:As to matters concerning the validity of the search, the Agency's decision shows that it considered the applicant's points on appeal in the context of Priestley J's decision. The Agency's conclusion that this ground of the appeal lacks prospects of success does not disclose an obvious error of law, such as the omission of relevant considerations or the taking into account of irrelevant considerations. Similarly, despite the applicant's disagreement with the Agency's decision, nothing suggests that it is irrational or based on an error of logic. The Panel therefore cannot find it to be manifestly unreasonable.Privilege[25] As to MA's second ground on the review, that the Agency had misapprehended his claim to privilege, the Panel summarised it in this way:It is argued only that litigation privilege should extend to refugeeconsultants, not to immigration consultants. The Agency has failed to appreciate the difference and therefore its decision is manifestly unreasonable.The Agency's contention that no authority exists for the extension of privilege misunderstands the argument, which is that, as a matter of principle and public policy, litigation privilege should be extended to refugee consultants. The Employment Court, for example, has accepted privilege exists between a lay advocate and a client on the same basis that it exists for a client who is represented by a solicitor. There is no logical reason why the principles and reasons for the privilege between a lawyer and a refugee client should not equally apply to a refugee consultant and a refugee client. The Agency did not consider or address the importance of the matter for refugees across the board and the importance of the matter in terms of the Convention relating to the Status of Refugees. Its statement that technical arguments should not derail the refugee proceedings under the Immigration Act 1897 fails to understand that the issue of litigation privilege is a fundamental cornerstone of the operation of the legal system.[26] The Panel's decision on this ground was this:The applicant's argument that the Agency failed to distinguish between immigration consultants and refugee consultants is a 'red herring'. In MA v Attorney-General (above) Priestley J also referred to an 'immigration adviser', rather than a refugee consultant (see, for example, para [74] of his decision). In the context, it is reasonably clear that both Priestley J and the Agency are referring specifically to refugee consultants (or to immigration consultants representing refugee claimants). The Agency could have done more to explain why it does not consider that the merits of this ground of the appeal are strong. It has merely stated that there is no authority for the proposition that litigation privilege should extend to consultants who represent clients seeking refugee status. However, it does not follow that the Agency has omitted to consider the applicant's arguments based on public policy grounds and analogy with other jurisdictions. It is clear that the Agency has read and considered Priestley J's decision. In paragraphs [69] – [74] of his judgment, Priestley J examined the principles on which litigation privilege is founded, albeit in a summary way, and His Honour referred to the cases the applicant had cited in the High Court proceedings. However, Priestley J was not persuaded by the applicant's submissions and he also thought that the confidentiality provision of the Immigration Act 1987 – s 129T – afforded protection. The Agency must be taken as preferring Priestley J's analysis over the applicant's argument on appeal.Passing over[27] As to the third error the Agency was said to have made, as to the legality of the police passing on documentation, the Panel summarised it in this way:The Agency was wrong to suggest that, if the seized documents that thepolice forwarded to the Refugee Status Branch were innocuous, then there was little point in trying to protect their disclosure. The Agency has failed to understand that there has to be a proper basis before the police may override their strict confidentiality obligations and refer documents they have found in the course of their legitimate business activities to any other agency or organisation. The High Court did not correctly impose or apply the test set out in Stepping Stones Nursery Limited v Attorney General [2002] 3 NZLR 414. The documents in themselves must disclose the nature of some crime that warrants their transfer from one agency to another. If the documents themselves do not disclose any criminal offending, they cannot simply be passed from one agency to another. In the case of the release of the applicant's video interview, which was made for the purpose of a criminal investigation, it should be noted that the police had been criticised recently by the Supreme Court in Rogers v TVNZ[2007] NZSC 97 for releasing such videos to third parties: 'There are general public interest considerations in regard to the search warrant and the release of the video interview.'[28] The Panel's conclusion was this:The Panel agrees with the applicant's submission that the Agency misunderstood the statement that the documents passed from the police to the Refugee Status Branch were 'innocuous'. On the other hand, the Agency captured the essence of Priestley J's decision in respect of the documentation when it paraphrased paragraph [91] of his judgment and stated that the integrity of New Zealand's refugee claims process and the public interest in ensuring that fraudulent claims can be properly dealt with must outweigh the confidentiality argument. It is evident that the Agency considers the applicant's argument under this ground of appeal to have no realistic chance of success. The Panel is unable to identify any error of law in that conclusion or find that it is manifestly unreasonable.Conclusion[29] The Panel, I consider, summarised accurately each of MA's grounds of appeal against the Agency's decision. The issue is whether in its conclusion the Panel made any vitiating error of law, and that raises two anterior questions. [30] The first question is whether the Panel understood correctly the statutory bases for review, what the concepts 'wrong in law' and 'manifestly unreasonable' connote. That is straight forward. The law as to each is settled. It is as set out in the Panel's decision, and MA does not challenge it directly.[31] Then there is the principal issue on this appeal, whether the Panel erred in the intensity of focus that it brought to the Agency's decision, Priestley J's decision and the grounds of appeal, and made as well any related errors. As to that Wylie J's decision is especially relevant.Statutory regime[32] The primary purpose of the Legal Services Act 2000, s 3(a) confirms, is 'to promote access to justice by – providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them.' The right to aid is not, of course, absolute. The Act is governing: Ngati Apa Ki Te Wai Pounamu Trust v A-G [2003] 1 NZLR 779; [2004] 1 NZLR 462 (CA).Decision making process[33] Decisions as to whether there should be any grant of aid lie with the Legal Services Agency, the primary function of which is, as s 92(a) says:To administer schemes in as consistent, accountable, inexpensive, and efficient a manner as is consistent with the purpose of the Act.[34] For that purpose the Agency is charged with specific powers of decision, whether to grant or refuse aid, like that in point: the right to aid for a civil case conferred by s 9(1), subject to the duties to refuse aid under s 9(2) – (3), that do not apply here, and its discretion under s 9(4) to refuse aid either to pursue or defend a case or to advance or respond to an appeal, to which I will return shortly. [35] The Review Panel may under s 57(2) confirm, modify or reverse the decision under review. Its jurisdiction on review is confined by s 54(1), which confers the right to apply for review, to the two grounds that the decision is either 'manifestly unreasonable' or 'wrong in law'. The Panel is not given any more general yardstick. Its function is supervisory. The right of appeal to this Court under s 59 is confined to questions of law.Two grounds for review[36] The Panel, relying on Legal Services Agency v Fainu [2002] 17 PRNZ 433,Randerson J, said that it could only intervene on the basis that the Agency's decision was 'manifestly unreasonable' if it was shown 'clearly and unmistakably' that the decision 'went beyond what was reasonable or was irrational or logically flawed'. [37] The Panel, again relying on Fainu, gave as instances an error of law, misinterpretation or inaccurate application of a statute, an error of principle, a failure to take into account a relevant matter or the taking into account of an irrelevant matter, or a decision unsupported by evidence. [38] MA does not begin to suggest that in adopting these definitions the Panel erred. His challenge on this appeal is to the level of scrutiny the Panel brought to the Agency's decision, and the materials on which that was based, the decision proposed to appeal to the Court of Appeal, and the grounds of appeal.Limited duty to give reasons[39] As to that issue, it has to be telling that the Agency is not placed under any duty by the 2000 Act to give reasons. The only statutory duty to do so is oblique; that imposed by s 23 of the Official Information Act. The Agency should, of course, at least explain itself, particularly where its decision may not be obviously consistent with 'well known guidelines or common practice': LSA v G (HC WN, AP 190/01, 30 April 2002), Doogue J, para [43]. Moreover, as Chisholm J said in LSA v Minchington [2003] 1 NZLR 263, at para [11], the standard expected is not that of a judicial officer:Grants officers are simply encouraged as a matter of prudence to make a brief record of their decisions for declining applications or imposing conditions in situations where the reasons are not obvious on the face of the decision.[40] The Review Panel, by contrast, is under a duty to give reasons. Section 57(3), however, which imposes that duty, requires only brief reasons. And as Miller J said in Brown at [66], relying on still earlier authority:The Panel's decision must enable the appellate Court to understand how the Panel reached its decision and ... , given the limited grounds upon which the Panel can review Agency decisions, something of a reasoning process is to be expected.[41] Once again MA does not begin to suggest that the Agency and the Panel failed to give reasons. It argues that their reasons were insufficiently particular because their analyses of his grounds of appeal were superficial. That their duty to give reasons is as limited as it is, however, tells against that argument.Function on review[42] Also, MA overstates the Panel's function on review, which the Panel itself clearly identified, relying on Legal Services Agency v A & O [2003] 17 PRNZ 443. It could not, it held, set aside the Agency's decision unless that decision was 'so clearly unreasonable that the intervention of the Panel is called for'. It was not 'to substitute its view of what the decision should have been for that of the Agency'. [43] That understanding of its role is fully consistent with authority that M A does not seek to challenge, shortly expressed by Venning in Gibson v LSA (HC AK, CIV 2006-404-999, 28 November 2008), at [17]:The Review Panel's role is not to determine whether the Agency's decision was correct, but rather whether the decision was wrong in law or manifestly unreasonable. It is a much narrower jurisdiction than that of an appeal from the exercise of discretion, which would include whether the decision was plainly wrong.[44] In this Venning J echoed O'Regan J in LSA v Tana (HC WHA, AP 26/02, 9 December 2002), at [25]: The Panel is required to exercise a considerable degree of restraint in determining review applications based on the 'manifestly unreasonable' ground The legislature has deliberately imposed a high threshold for intervention . That implies that the legislature intended there should be a degree of tolerance about decisions of the Agency which would not be appropriate where there was a full right of appeal, on the basis that the Agency was exercising a discretion.[45] That was Wylie J's conclusion on the first appeal, at [34] and [57]. As he remarked in the latter paragraph 'the Review Panel's jurisdiction was limited. It could only interfere with the Agency's decision if it was manifestly unreasonable, or wrong in law'.Intensity of review[46] The consequence is, I consider, that on such a review the Panel is not obliged, nor should it, subject the Agency's decision to the scrutiny that might be apt to a general review by way of rehearing on the merits, where a decision is judicial, not administrative. If the Panel were to bring to its analysis that intensity its own appreciation of the claim would almost always trump that of the Agency. That would be perverse. [47] Rather, I consider, as Miller J said in LSA v Brown (2005) 17 PRNZ 523, para [40], it is only when the Panel has concluded that the Agency's decision was manifestly unreasonable or wrong in law that it can begin to substitute its own view.Refugee case[48] A special factor in this case, MA argues, heightened the Agency's duty to consider very closely the viability of his grounds of appeal to the Court of Appeal, when set against the judgment appealed from; and so too the Panel's review of the Agency's decision. It is that all these decisions, directly or indirectly, concern his refugee status and perhaps his safety, even his life. [49] In RB (Algeria) v Secretary of State of the Home Department [2009] UK HL 10, at 211, in a passage on which MA relies, Lord Hope of Craighead, speaking about the rights of the appellants, then to be removed as aliens under the Anti- Terrorism, Crime and Immigration Act 2001, said that, even where aliens may be dangerous extremists, especial vigilance is called for:The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone.[50] This present appeal does not, however, concern directly the very process by which MA's refugee status is to be reviewed. It concerns whether he should be entitled to a grant of aid to pursue his appeal to the Court of Appeal against a decision of this Court adverse to him. That is a quite distinct issue.[51] An analogous question issue arose in Brown. There Miller J held that cases involving alleged breaches of the New Zealand Bill of Rights Act 1990, stood in no special category. The 1990 Act, he said, confers no right to legal aid. The 2000 Act is definitive. So too here.Grant eligibility[52] The right to aid for a civil case conferred by s 9(1) is not absolute. It is a right to apply that is then subject in every case to the Agency's exercise of discretion under s 9(4), which says, so far as is relevant:The Agency may refuse to grant aid to an applicant in any of the following circumstances: (d) in the case of original proceedings, - (i) the applicant's prospects of success are not sufficient to justify the grant of legal aid; or (ii) the grant of legal aid is not justified, having regard to the nature of the proceedings and the applicant's interest in them (financial or otherwise), in relation to the likely cost of the proceedings; or (iii) for any other cause where it appears unreasonable or undesirable that the applicant should receive legal aid in the particular circumstances of the case: (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 legal aid or further legal aid is not justified.[53] What will always be relevant under s 9(4)(e) as well as s 9(4)(f) is whether the case has a sufficient prospect of success and, as to that, in Timmins v Legal Aid Review Panel [2004] 1 NZLR 708, Wild J held at [33] in a widely accepted statement:'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 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.[54] Wild J went on to say at [34] that precisely because prospects of success can involve the weighing of non-pecuniary benefits against costs the assessment can be difficult, and that is surely so. But as Wylie J held on the appeal against the Panel's first decision in this case, at [42], the Agency's discretion extends more widely:In my view s 9(4)(e) is quite clear. In the case of an appeal, the Agency may, in the exercise of its discretion, refuse to grant legal aid if it considers that 'for any reason' a grant of legal aid is not justified. It is difficult to see that the grounds for the exercise of the discretion could have been expressed more widely. The expression 'for any reason' is open ended.[55] This discretion, Wylie J said immediately, though wide, is not absolute:Obviously the exercise of the discretion must be confined by statutory context and it should not result in a decision which is manifestly unreasonable or wrong in law. Subject to these restrictions the discretion can be exercised 'for any reason' and this could embrace any of the factors identified in s 9(4)(a) to (d), or indeed other factors.[56] Wylie J also made two other comments that had to have had a bearing on the decision of the Panel, presently under appeal; the first at [42] following immediately on those just set out:In my view, the words permit consideration of whether the applicant's prospects of success are sufficient to justify the grant of legal aid. That will require that some account be taken of the merits of the decision it is so sought to challenge It could be appropriate to consider whether the arguments the applicant wishes to advance on appeal are technical and devoid of substantive merit.[57] The other is at [46]:The Agency and the Review Panel are not charged with responsibility for overseeing the development of the law. Rather they are charged with overseeing the provision of funds from the public purse to assist people who have insufficient means to pay for legal services to nonetheless have access to them – s 3.[58] The Panel on the second review was obliged to apply this analysis and did so; and, for my part, I agree with that analysis. The issue can only be whether the Panel then made some vitiating error of law and, once MA's primary challenge is set to one side, I cannot see that it did so. [59] MA's abiding complaint is that the Agency and the Panel in turn failed toappreciate in diverse ways the arguable merit of his grounds of appeal. His real complaint is that neither brought to those grounds the scrutiny that is required of the Court of Appeal on the hearing of the appeal.Conclusions[60] The issue whether MA should enjoy a grant of aid for his appeal to the Court of Appeal is, as the contrasting conclusions in the Agency's decision and that of the first review Panel make clear, susceptible of more than one answer. It may well be that the decision of the first Review Panel contains the better appreciation. But that is not the issue on this appeal. [61] The issue on this appeal is, as Wylie J made clear in his decision on the first appeal, setting aside that of the first Panel, whether the second Panel was wrong in law in upholding the Agency's decision, and in finding the Agency's decision neither manifestly unreasonable nor wrong in law. [62] The errors ascribed to the Panel, and necessarily the Agency, spring from the claim that both failed to acknowledge the merits of MA's grounds of appeal. But, as Wylie J said, the Agency's discretion extended beyond that question and the Panel itself was limited in the scope of its review to the issues whether the Agency was manifestly unreasonable or wrong in law. It could not substitute its own view. [63] On my own review of the Panel's decision I see no error of law. Rather, the Panel on the second review appears to me to have been faithful to the decision of Wylie J on the first appeal by which it was bound. To find on this appeal that the second Panel fell into error for that reason would be to assert that the first Panel got it right and Wylie J was wrong. That would be perverse. [64] Such a possibility is, however, academic. The second Panel's decision, I find, is not marred by any vitiating error. The appeal will be dismissed. _____________ P.J. Keane J