Fotooh v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Irvine,
• Judgment Date: 14 April 2011
• Neutral Citation: [2011] IEHC 166
• Court: High Court
• Date: 14 April 2011

[2011] IEHC 166

THE HIGH COURT

No. 1659 JR/2007

Fotooh v Minister for Justice

JUDICIAL REVIEW

BETWEEN

MAHMUD MOHAMMED FOTOOH

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S14

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)

EAST DONEGAL COOPERATIVE v AG 1970 IR 317

R v SECRETARY OF STATE FOR THE ENVIRONMENT EX PARTE SPATH HOLME LTD 2001 2 AC 349

POK SUN SHUM v IRELAND 1986 ILRM 593

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

MISHRA v MIN FOR JUSTICE 1996 1 IR 189

JIAD v MIN FOR JUSTICE UNREP COOKE 19.5.2010 2010/24/6010 2010 IEHC 187

ABUISSA v MIN FOR JUSTICE UNREP CLARK 1.7.2010 2010/1/227 2010 IEHC 366

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

O'NEILL v IRELAND 2004 1 IR 298

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

WORLDPORT IRELAND LTD, IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

MURRAY v IRELAND 1991 ILRM 465

KINAHAN v MIN FOR JUSTICE 2001 4 IR 458

BREATHNACH v MIN FOR JUSTICE 2004 3 IR 336

RSC O.84 R21(1)

O'FLYNN v MIDWESTERN HEALTH BOARD 1991 2 IR 223

BANE v GARDA REPRESENTATIVE ASSOCIATION 1997 2 IR 449

SOLAN v DPP 1989 ILRM 491

RSC O.84

WELDON v MIN FOR HEALTH UNREP KEARNS 10.12.2010 2010/53/13238 2010 IEHC 444

DEKRA ÉIREANN TEO v MIN FOR ENVIRONMENT 2003 2 IR 270

A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 27.7.2007 2007/1/188 2007 IEHC 290

O (S M) v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP COOKE 7.5.2009 2009/43/10703 2009 IEHC 219

F (B T) v DPP 2005 2 IR 559 2005 2 ILRM 367 2005/24/4872 2005 IESC 37

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190 2001 2 ILRM 241

BANE v GARDA REPRESENTATIVE ASSOCIATION 1997 2 IR 449

R v CRIMINAL INJURIES COMPENSATION BOARD 1999 2 AC 330

RSC O.53 R 4(1)

SUPREME COURT ACT 1981 S31

SUPREME COURT ACT 1981 S31(6)

RSC O.84A

O'DONNELL v DUN LAOGHAIRE CORPORATION 1991 1 ILRM 301

RSC O.84A R4

JUDICIAL REVIEW

Delay

Time limit - Operative date - Purpose of time limits - Affidavit as to reasons for delay - Extension of time granted at ex parte stage - Jurisdiction to re-visit issue of delay - Jurisdiction to deal with issue as preliminary issue - Burden of proof - Nature of citizenship - Entitlement to engage further with citizenship process - Weight of decision from court of equal jurisdiction - Decision to refuse application for naturalisation - No reasons furnished - Delay in seeking judicial review - Whether operative date later than date of decision - Whether requirement to plead delay as ground of opposition - Whether delay should be dealt with as preliminary issue or considered - Whether good reason for extending time - Whether court would depart from recent decisions determining substantive issue - Dekre Éireann Teo v Minister for Environment [2003] 2 IR 270 and De Róiste v Minister for Defence [2001] 1 IR 190 applied; Jiad v Minister for Justice [2010] IEHC 187, (Unrep, Cooke J, 19/5/2010); Abuissa v Minister for Justice [2010] IEHC 366, [2011] 1 IR 123; Reg v Home Secretary, Ex p Fayed [1998] 1 WLR 763; Irish Trust Bank Ltd v Central Bank of Ireland [1976-7] ILRM 50; Re Worldport Ireland Ltd (in Liquidation) [2005] IEHC 189, (Unrep, Clarke J, 16/5/2005); O'Flynn v Mid-western Health Board [1991] 2 IR 223; Bane v Garda Representative Association [1997] 2 IR 449; Weldon v Minister for Health and Children [2010] IEHC 444, (Unrep, Kearns P, 10/12/2010); Solan v DPP & Wine [1989] ILRM 491; O'Donnell v Dun Laoghaire Corp [1991] ILRM 301 approved - East Donegal Co-operative Livestock Mart Ltd v Attorney General [1970] IR 317; R v Environment Secretary, Ex p Spath Holme Ltd [2001] 2 AC 349; Pok Sun Shun v Ireland [1986] ILRM 593; O'Neill v Governor of Castlerea Prison [2004] IESC 7 and 73, [2004] 1 IR 298; Murray & Murray v Ireland [1991] ILRM 465; Kinahan v Minister for Justice [2001] 4 IR 454; Breathnach v Minister for Justice [2004] IEHC 64, [2004] 3 IR 336 considered; Reg v Criminal Injuries Board, ex p A [1999] 2 AC 330; State (Furey) v Minister for Defence [1988] ILRM 89; H(LG) v Minister for Justice, Equality and Law Reform [2009] IEHC 78, (Unrep, Edwards J, 30/1/2009); Mishra v The Minister for Justice [1996] 1 IR 189; A(F) v Refugee Appeals Tribunal [2007] IEHC 290, (Unrep, Peart J, 27/7/2009); O(SM) v Refugee Applications Commissioner [2009] IEHC 219, (Unrep, Cooke J, 7/5/2009); BTF v Director of Public Prosecutions [2005] IESC 37, [2005] 2 IR 559 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 84 r 21- Irish Nationality and Citizenship Act 1956 (No 26), ss 14 and 15 - Irish Nationality and Citizenship Act 1986 (No 23) - Freedom of Information Act 1997 (No 13) - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Proceedings dismissed (2007/1659JR - Irvine J - 14/4/2011) [2011] IEHC 166

Fotooh v Minister for Justice, Equality and Law

1 Judgment of Ms. Justice Mary Irvine, dated the 14th day of April, 2011

2 1. The applicant is an Egyptian national. He arrived in the State in 1998 and was granted refugee status in 2004. He is married with nine children. His wife and children all have Irish citizenship and on 26 ^th November, 2004, the applicant applied to the respondent for naturalisation pursuant to the provisions of the Irish Nationality and Citizenship Act 1956, (as amended). On 5 ^th February, 2007, the respondent informed the applicant that his application had been refused and that, "[i]n reaching this decision, the Minister has exercised his absolute discretion, as provided by the Irish Nationality and Citizenship Acts 1956 and 1986". No further explanation was provided to the applicant as to why his application for naturalisation was unsuccessful.

History

3 2. The applicant's legal representative applied for all documentation in relation to the applicant held by the Department of Justice, Equality and Law Reform under the Freedom of Information Act 1997. On 17 ^th May, 2007, the Department responded, providing the applicant with what appeared to be the full file on record yet no reason, or basis, for the refusal of his application was ascertainable from the documentation furnished. On 2 ^nd August, 2007, the applicant's legal representatives contacted the respondent's Department once more, inquiring as to "what matters the Minister had regard to in exercising his discretion". The respondent replied by reiterating that the Minister had refused the application by exercising his absolute discretion. On 27 ^th May, 2008, the applicant sought voluntary discovery of all documents pertaining to the application for naturalisation. The respondent initially agreed, but then opted not to discover these documents. A motion seeking discovery came before the High Court but was adjourned to the hearing of the substantial judicial review proceedings.

4 3. Leave to seek judicial review was granted ex parte by Peart J. on 10 ^th December, 2007, to seek, inter alia, the following reliefs:-

5 (i) An order of certiorari quashing the decision of the respondent to refuse the applicant's application for naturalisation;

6 (ii) A declaration that the applicant is entitled to know the reasons for the respondent's decision to refuse him naturalisation.

7 Peart J. also ordered that the applicant's time for making the application for leave was extended up to and including the date of the ex parte application.

The Statutory Framework

8 4. Section 14 of the Irish Nationality and Citizenship Act 1956, as amended, provides:-

"Irish citizenship may be conferred on a non national by means of a certificate of naturalisation granted by the Minister [of Justice, Equality and Law Reform]"

9 Section 15 (1) of the 1956 Act states:-

10 Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant -

11 (a) (i) is of full age, or

12 (ii) is a minor born in the State;

13 (b) is of good character;

14 (c) has had a period of one year's continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, has had a total residence in the State amounting to four years;

15 (d) intends in good faith to continue to reside in the State after naturalisation and;

16 (e) has made, either before a Justice of the District Court in open court or in such manner as the Minister, for special reasons, allows, a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State.

The Applicant's Submissions

17 5. Counsel on behalf of the applicant submitted that in reaching a decision on an application for naturalisation, the respondent may decide whether or not to grant a naturalisation certificate in his absolute discretion, but is obliged to carry out his statutory functions in accordance with basic fairness and to apply fair procedures in the decision-making process. It was submitted that, although the Minister has a discretion, he is required to act lawfully and within the "the boundaries of the stated objects of the Act" ( East Donegal Cooperative v. Attorney General [1970] I.R. 317).

18 6. The applicant submitted that he does not claim a right to citizenship. However, it was argued that in order to have afforded the applicant fair procedures, the respondent was required to give the applicant the reasons for the refusal of his application and/or to inform the applicant of the matters to which the respondent had regard in reaching the impugned decision and to give the applicant an opportunity to respond to same. It was argued that such knowledge would not impinge upon the absolute...