A.A. v Minister for Justice & Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 26 July 2017 |
| Neutral Citation | [2017] IEHC 491 |
| Docket Number | [2016 No. 660 J.R.] |
| Court | High Court |
| Date | 26 July 2017 |
[2017] IEHC 491
[2016 No. 660 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Asylum, Immigration & Nationality - S. 16 of the Irish Nationality and Citizenship Act 1956 - Refusal of naturalisation certificate - Good character - Factual inaccuracies - Nature of administrative discretion
Facts: The applicant applied for judicial review of the respondent's decision of refusing the applicant's application for naturalisation. The applicant contended that the standard of 'good character' applied by the applicant was opaque. The respondent argued that it had absolute discretion and unless the applicant proved that such discretion was arbitrary or capricious, the High Court could not interfere in the respondent's decision.
Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court held that the respondent had weighed the information that was before it and applied the correct test. The Court noted that it would not interfere in the executive decision unless it was proved that such a decision was unreasonable and arbitrary on the face.
The applicant secured leave on the 20th October, 2016 to apply for judicial review of the respondent's decision of the 3rd June, 2016 refusing the applicant's application for naturalisation which was made on the 30th September, 2010. The judicial review application was first opened on the 18th August, 2016 and therefore no extension of time is required.
The statement of grounds herein is dated the 15th August, 2016 and complains that:-
(1) the standard of good character was set at an unreasonably or unlawfully high level,
(2) the applicant was not afforded an opportunity to comment on matters which were held against her in the respondent's decision,
(3) the respondent had a discretion under s. 16 of the Irish Nationality and Citizenship Act 1956, as amended, but did not exercise this discretion,
(4) the standard of good character was unlawfully opaque,
(5) the decision was irrational or unreasonable,
(6) the respondent failed to weigh or did not give sufficient reasons for rejecting positive factors going in the applicant's favour and
(7) the rationale and reasoning of the respondent was not sufficiently clear.
In the statement of opposition of the 24th March, 2017, the respondent denies all aspects of the claim made out on behalf of the applicant and relies upon the absolute discretion afforded to the respondent in granting a certificate of naturalisation as well as the fact that the discretionary element mentioned in the statement of grounds did not arise as the applicant had crossed out that portion of the application as referred to Irish association, notwithstanding that by the date of the application a child was born to her which at its birth was deemed an Irish citizen child.
The applicant came to Ireland on the 27th November, 2006 and applied for asylum. The applicant is from Sudan. ORAC refused her application on the 24th of April, 2007 and this order was appealed. It appears that RAT made a decision on appeal however, by consent of the parties an order was made by the High Court on the 24th November, 2008 granting an order quashing the decision of RAT of the 30th April, 2008 and remitting the applicant's appeal to the Refugee Appeals Tribunal for rehearing before a different tribunal member.
The applicant married her husband on the 3rd August, 2007 and he was at that time a recognised refugee in Ireland. He was subsequently naturalised in 2010. Based on her husband's refugee status, the applicant was afforded a right of residence to remain in the country on the 29th January, 2009. On the 11th December, 2009, the applicant withdrew her asylum application.
On the 30th September, 2010, the applicant applied for naturalisation. There followed correspondence between the parties where the respondent indicated that the United Kingdom Border Agency had supplied information to the effect that the applicant had applied for a UK visa on the 29th September, 2006. The applicant denies that she had made such an application and indicated that she suspected that her identity had been used by a gang of smugglers who assisted her in escaping from Sudan, such suspicion was based upon an incident that happened when she applied for her first and current Sudanese passport. She indicated that it was brought to her attention by the Sudanese immigration authorities that a previous passport had been issued in her name although she had never applied for one before.
In response to further queries raised on the 6th November, 2015, the applicant indicated that she had been absent from the State including for two months from the 25th June, 2009 in Egypt, for two months from the 15th November, 2010 in Sudan and for nineteen days from the 29th August, 2013 in Sudan.
The applicant has two children born in Ireland on the 1st October, 2008 and the 24th November, 2011 respectively.
The relevant decision records that the applicant arrived in Ireland and sought refugee status and records her visits to Sudan thereafter. Insofar as the applicant's passport was concerned, the decision records that the applicant's then current passport contains observations to the effect that it replaced a previously lost passport. It also records that the applicant did not conduct any investigation with the Sudanese authorities in respect of the passport issued which she had not applied for. The decision also records a number of other issues which had arisen during the currency of the examination process which appeared to have resolved in the applicant's favour. In the recommendation section it is provided:-
'The applicant arrived to the State as an asylum seeker and that she had since returned to Sudan along with the fact that refugee status was refused indicates a lack of credibility of her asylum claim. She has admitted that her passport C0520141 was issued based on incorrect information. These are matters that go to character. I am not satisfied that the applicant is of good character, I would not recommend the Minister grant a certificate in this case.'
In written submissions, the applicant relies on the case of S.H. v. Minister for Justice and Equality [2017] IEHC 41 where it was held that there were two factual inaccuracies within the relevant naturalisation refusal and it was not possible to ring-fence these inaccuracies to enable the decision to stand. One of the inaccuracies was that the applicant had made an asylum application with a different name and a different date of birth which ultimately proved to be incorrect. A further inaccuracy was that the applicant had made a 'clearly unfounded application' for asylum inter alia in the United Kingdom, in circumstances where all that was known was that he had made an asylum application which was not successful. The applicant argues that the within applicant is in a like position, in particular, as it is clear that the decision maker did not consider the asylum file.
The applicant also relies on the judgment of Hogan J. in Hussain v. Minister for Justice, Equality and Law Reform [2011] IEHC 171 to the effect that when the Minister is considering an application for naturalisation, the decision must be made in good faith without reference to irrelevant matters and considering all relevant matters with no misinterpretation of the law. The standard in relation to good character should not be an exalted standard or involve the personal morality of the Minister, it rather should be a reasonable standard of civic responsibility as gaged by reference to contemporary values.
The applicant relies on the Supreme Court decision in Mallak v. the Minister for Justice Equality and Law Reform [2012] 3 I.R. 297 to the effect that reasons must be given to justify a refusal.
The final case relied upon by the applicant was the matter of G.K.N. v. Minister for Justice and Equality [2014] IEHC 478 where...
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