Abuissa v Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Court: High Court
• Judge: MS. JUSTICE M. H. CLARK
• Judgment Date: 01 July 2010
• Neutral Citation: [2010] IEHC 366
• Date: 01 July 2010
• Docket Number: [2006 No. 245 JR]

[2010] IEHC 366

THE HIGH COURT

[No. 487 J.R./2009]

Abuissa v Min for Justice

JUDICIAL REVIEW

BETWEEN

MOHAMMED ABUISSA

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S17(1)(A)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(A)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(B)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(C)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(D)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16(G)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S14

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

H (LG) v MIN FOR JUSTICE & ORS UNREP EDWARDS 30.1.2009 2009/24/5913 2009 IEHC 78

B (A) v MIN FOR JUSTICE UNREP COOKE 18.6.2009 2009/4/839 2009 IEHC 449

SHUM v IRELAND & AG 1986 ILRM 593 1986/4/1484

MISHRA v MIN FOR JUSTICE & ORS 1996 1 IR 189 1996/13/4227

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE AL-FAYED (NO 1) 1998 1 WLR 763 1997 1 AER 228

BRITISH NATIONALITY ACT 1981 S44 (UK)

BRITISH NATIONALITY ACT 1981 S44(2) (UK)

BRITISH NATIONALITY ACT 1981 S44(3) (UK)

NATIONALITY IMMIGRATION & ASYLUM ACT 2002 S7(1)

CONVENTION ON THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION) ART 34

FREEDOM OF INFORMATION ACT 1997 S18(1)

FREEDOM OF INFORMATION ACT 1997 S18

FREEDOM OF INFORMATION ACT 1997 S24

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)

BREATHNACH v MIN FOR JUSTICE 2004 3 IR 336 2003/6/1234 2004 IEHC 64

KINAHAN v MIN FOR JUSTICE & ORS 2001 4 IR 454 2001/13/3766

N (A) v MIN FOR JUSTICE UNREP CLARK 29.7.2009 2009/41/10279 2009 IEHC 354

HATHAWAY THE LAW OF REFUGEE STATUS 1991

SOFINETI v JUDGE ANDERSON & ORS 2008 3 IR 417 2008/59/12249 2004 IEHC 440

SIRITANU v DPP & JUDGE COUGHLAN UNREP DUNNE 2.2.2006 2005/55/11472 2006 IEHC 26

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

P & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

REFUGEE ACT 1996 S17

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)(E)

SAVAGE & MCOWEN v DPP & AG 1982 ILRM 385 1980/19/3277

MCCORMACK, STATE v CURRAN & ORS 1987 ILRM 225

H v DPP & CMSR OF AN GARDA SIOCHANA 1994 2 ILRM 285 1994/10/2971

BOLAND v AN TAOISEACH & ORS 1974 IR 338

CROTTY v AN TAOISEACH & ORS 1987 IR 713

MCGIMPSEY v IRELAND & ORS 1988 IR 567 1989 ILRM 209 1988/9/2565

COUNCIL OF CIVIL SERVICE UNIONS & ORS v MIN FOR THE CIVIL SERVICE 1984 3 AER 935 1985 AC 374 1984 3 WLR 1174 1985 ICR 14

BRITISH NATIONALITY ACT 1981 S6 (UK)

BRITISH NATIONALITY ACT 1981 SCHED 1 (UK)

AG v RYAN 1980 AC 718 1980 2 WLR 143

BAKER v CARR 1962 369 US 186

MATHEWS v DIAZ 1976 426 US 67

HARISIADES v SHAUGHNESSY 1952 342 US 580

IMMIGRATION & NATIONALITY ACT 1952 S335 (US)

IMMIGRATION & NATIONALITY ACT 1952 S336(A) (US)

IMMIGRATION & NATIONALITY ACT 1952 S310(5)(C) (US)

CITIZENSHIP ACT RSC 1985 S14 (CANADA)

CITIZENSHIP ACT RSC 1985 S14(2) (CANADA)

CITIZENSHIP ACT RSC 1985 S14(3) (CANADA)

CITIZENSHIP ACT RSC 1985 S5(3) (CANADA)

CITIZENSHIP ACT RSC 1985 S15(1) (CANADA)

CITIZENSHIP ACT RSC 1985 S14(5) (CANADA)

CITIZENSHIP ACT RSC 1985 S14(6) (CANADA)

CITIZENSHIP ACT RSC 1985 S16 (CANADA)

CITIZENSHIP ACT RSC 1985 S5 (CANADA)

CITIZENSHIP ACT RSC 1985 S5(4) (CANADA)

CITIZENSHIP ACT RSC 1985 S19(2) (CANADA)

CITIZENSHIP ACT RSC 1985 S19(5) (CANADA)

CITIZENSHIP ACT RSC 1985 S19(6) (CANADA)

CITIZENSHIP ACT RSC 1985 S20 (CANADA)

AUSTRALIAN CITIZENSHIP ACT 2007 S24(2) (AUSTRALIA)

AUSTRALIAN CITIZENSHIP ACT 2007 S24(3) (AUSTRALIA)

AUSTRALIAN CITIZENSHIP ACT 2007 S24(4) (AUSTRALIA)

AUSTRALIAN CITIZENSHIP ACT 2007 S24(4A) (AUSTRALIA)

AUSTRALIAN CITIZENSHIP ACT 2007 S47(3) (AUSTRALIA)

AUSTRALIAN CITIZENSHIP ACT 2007 S52 (AUSTRALIA)

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 S44(1) (AUSTRALIA)

CONVENTION ON THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION) ART 31

FREEDOM OF INFORMATION ACT 1997 S18(2)

FREEDOM OF INFORMATION ACT 1997 S24(1)

FREEDOM OF INFORMATION ACT 1997 S24(3)

FREEDOM OF INFORMATION ACT 1997 S18(2)(A)

FREEDOM OF INFORMATION

Access to records

Reasons - Whether Minister required to give reasons for decision - Freedom of Information Act 1997 (No 13), s 18 - Irish Nationality and Citizenship Act 1956 (No 26) ss 14, 15 and 16 -Relief refused (2006/245JR - Clark J - 1/7/2010) [2010] IEHC 366

Abuissa v Minister for Justice

IMMIGRATION

Naturalisation

Refusal of application - Absolute discretion of respondent - Constitutional justice - Duty to state reasons -Geneva Convention - Whether applicant could rely on article 34 of Geneva Convention in domestic court proceedings - Pok Sun Shum v Ireland [1986] ILRM 593 followed; Savage v DPP [1982] ILRM 385, The State (McCormack) v Curran [1987] ILRM 225, Breathnach v Minister for Justice [2004] 3 IR 336 and Kinahan v Minister for Justice [2001] 4 IR 454 considered; Mishra v Minister for Justice [1996] 1 IR 189, AB v Minister for Justice [2009] IEHC 449, (Unrep, Cooke J, 18/6/2009), LGH v Minister for Justice [2009] IEHC 78, (Unrep, Edwards J, 30/1/2009) and Reg v Home Secretary, Ex p Fayed [1998] 1 WLR 763 distinguished; Boland v An Taoiseach [1974] IR 338, McGimpsey v Ireland [1988] IR 567 and Crotty v An Taoiseach [1987] IR 713 applied; CCSU v Minister for Civil Service [1985] AC 374 considered; Siritanu v DPP [2006] IEHC 26, (Unrep, Dunne J, 2/2/2006) and NS v Anderson [2004] IEHC 440, [2008] 3 IR 417 considered - United Nations Convention relating to the Status of Refugees 1951 and Protocol of 1967, article 34 - Irish Nationality and Citizenship Act 1956 (No. 26) ss. 14, 15 and 16 - Relief refused (2006/245JR - Clark J - 1/7/2010) [2010] IEHC 366

Abuissa v Minister for Justice

Facts: The applicant claimed to be a Palestinian born in Libya and arrived in Ireland in 2004 seeking asylum. He alleged that he had experienced persecution at the hands of the authorities in Jordan. He applied for a certificate of naturalisation in 2008, pursuant to s. 15 Irish Naturalisation and Citizenship Act 1956, as amended. He wished to be granted naturalisation to obtain an Irish passport to facilitate travel to and from all countries in the Middle East to source ingredients for his restaurant in Dublin. He argued that the failure to give reasons for the refusal of the application of the applicant was in breach of fair procedures and constitutional justice. The applicant also contended that the Geneva Convention put an obligation on the Minister to integrate the applicant into Irish society. The respondent contended that the Minister had absolute discretion, pursuant to the terms of the Act of 1956, as amended.

Held by H. Clark J. that the Court was not satisfied that the applicant was entitled to the reliefs sought and the application failed. The furnishing of reasons was undoubtedly the trend in recent times but that such matters fell to be determined by the legislature and not the Courts.

Reporter: E.F.

1 JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 1st day of July, 2010.

2 1. This is an application for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister"), dated the 6 ^th February, 2009 refusing the applicant a certificate of naturalisation. The basis for the challenge is the failure of the Minister to provide any reasons for the refusal.

3 2. Leave was granted to seek judicial review on an ex parte basis by Peart J. on the 11 ^th May, 2009. Mr. Colm O'Dwyer, B.L. appeared for the applicant and Mr. Anthony Moore, B.L. for the respondent at the substantive hearing.

Background to the claim

4 3. By way of factual background, Mr. Abuissa claims to be a Palestinian born in Libya. He says that he and his parents moved to Jordan when he was three and that in Jordan they had refugee status. His birth certificate is lost but he believes that he was born in October, 1973. He attended university in Syria where he obtained a degree in geography in November, 1998. The translation of his degree describes the graduate as Mr. Mohammad Abu Issa and states that his parents are of Jordanian nationality. The applicant arrived in Ireland in 2004 and sought asylum. No information on his asylum claim was before the Court nor was it in any way explained how a person with refugee status in Jordan could claim asylum in another country. No details of the persecution that he feared were introduced. In his affidavit grounding this application he states that he " experienced persecution at the hands of the authorities in Jordan ". Documents before the Court indicate that his appeal from the negative recommendation of the Refugee Applications Commissioner was successful before the Refugee Appeals Tribunal and the Minister was therefore obliged to grant him refugee status in accordance with s. 17(1) (a) of the Refugee Act 1996.

5 4. According to the applicant's affidavit, some two years after his status as a refugee was clarified he opened a Lebanese restaurant in Dublin with substantial financial help from his parents who continue to reside in Jordan, together with a loan from the Bank of Ireland. Since obtaining refugee status in 2005 he has travelled regularly to and from the Middle East using his refugee travel permit, which describes him as a teacher.

6 5. On the 19 ^th February, 2008 the applicant applied for a certificate of naturalisation pursuant to s. 15 of the Irish Naturalisation and Citizenship Act 1956, as amended. The Minister raised no issue as to the adequacy of the applicant's age, character, period of continuous residency in the State or intention to reside in Ireland for the purposes of s. 15(1) (a), (b), (c) or (d) of the Act. In any event, the applicant claims that he would benefit from the terms of s. 16(g) of the Act. The relevant provisions...