Hussain v Min for Justice

 
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[2011] IEHC 171

THE HIGH COURT

[No. 803 J.R./2010]
Hussain v Min for Justice

BETWEEN

KASPAR HUSSAIN
APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

2010/803JR - Hogan - High - 13/4/2011 - 2011 26 6875 2011 IEHC 171

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IRISH NATIONALITY & CITIZENSHIP ACT 1986 S4

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

COPYRIGHT & RELATED RIGHTS ACT 2000 S143

OFFENCES AGAINST THE STATE ACT 1939 S29

RYAN v O'CALLAGHAN UNREP BARR 22.7.1987 1987/8/2214

LARCENY ACT 1916 S42

DILLON v MIN FOR POSTS & TELEGRAPHS UNREP SUPREME 3.6.1981 1981/9/1589

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

CONSTITUTION ART 9.3

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

MAGUIRE & ORS v ARDAGH & ORS 2002 1 IR 385

CONSTITUTION ART 5

LYNCH, STATE v COONEY & AG 1982 IR 337

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

RSC O. 84 r26(4)

IMMIGRATION

Naturalisation

Refusal - Reasons - Civil or criminal "proceedings" - "Good character" - Absolute discretion of Minister to grant certificate of naturalisation - Whether Minister's decision amenable to judicial review - Constitutional justice - Fair procedures - Obligation on Minister to put matters to applicant before making adverse determination on "good character" - Ryan v O'Callaghan (Unrep, Barr J, July, 1987), Dillon v Minister for Posts and Telegraphs (Unrep, SC, 3/6/1981), Jiad v Minister for Justice (Unrep, Cooke J, 19/5/2010), Maguire v Ardagh [2002] 1 IR 385, State (Lynch) v Cooney [1982] IR 337 and LGH v Minister for Justice [2009] IEHC 78 (Unrep, Edwards J, 30/1/2009) considered - Irish Nationality and Citizenship Act 1956 (No 26), s 15 - Certiorari granted, matter remitted (2010/2JR - Hogan J - 13/4/2011) [2011] IEHC 171

Hussain v Minister for Justice

1

1. Section 15 of the Irish Nationality and Citizenship Act 1956 (as inserted by s.4 of the Irish Nationality and Citizenship Act 1986) is a decidedly unusual statutory provision in that it gives the Minister for Justice, Equality and Law Reform the power to grant a certificate of naturalisation "in his absolute discretion" provided that he is satisfied that certain statutory requirements are satisfied. One of these statutory requirements (s. 15(1)(b)) is that the Minister must be satisfied that the applicant is of "good character". The fundamental issue which presents itself in these judicial review proceedings is whether the Minister violated the applicant's constitutional right to fair procedures by relying on material which had not previously been disclosed to the applicant and in respect of which - or, at least, so the argument runs - he had no opportunity of dealing.

2

2. In the present case Mr. Hussain applied for a certification of naturalisation in order to acquire Irish citizenship, but this was refused by the Minister on good character grounds. Mr. Hussain is originally from Pakistan, but he has been living here lawfully since 2000. He is currently living in Co. Wexford where he has been, for the most part, in regular employment.

3

3. Mr. Hussain applied for a certificate of naturalisation in 21 st December, 2005. Paragraph 6.1 of the relevant form (described as Form 8: Application by a Person of Full Age for Naturalisation as an Irish Citizen) required him to give:-

"particulars of any proceedings (civil or criminal) which have been taken against you in courts of law in the State or elsewhere. (The date, place and nature of the proceedings and the result should be stated.)"

4

4. This part of the form was left blank by the applicant. However, an information leaflet dealing with all aspects of naturalisation had also been published on the Minister's website. The leaflet provided in material part as follows:

"What does 'good character' mean?"

The Garda Síochána (Ireland's national police) will be asked to furnish a report about your background. Any criminal record or ongoing proceedings will be taken into consideration by the Minister in deciding whether to grant naturalisation or not. Details of any proceedings, criminal or civil, in the State or elsewhere, should be disclosed at Question 1.9 on the application form."

5

5. It is, I think, accepted that the reference to Question 1.9 is to the present version of the application form, but that this question is in substance identical to Paragraph 9.1 of the application form which Mr. Hussain completed in December, 2005. At all events, in their submission to the Minister in January 2010, the Minister's officials recommended that the application be refused because it was said that the applicant had come to adverse Garda attention. The following details were given:-

Date

Court

Offence

Conviction/Outcome

04/12/2003

Applicant passed two forged €10 notes at Bolands garage when paying for repairs to van.

No Charges preferred

20/12/2005

Search carried out under Copyright Act, large amount of counterfeit clothing seized from the applicant

No Charged preferred

Comments: Applicant did not include the above information on question 6.1 of their Form 8 application for naturalisation which required that an applicant provide particulars of any proceedings (civil or criminal) which have been taken in courts of law in the State or elsewhere. (The date, place and nature of the proceedings and the result to be stated). As Mr. Kausar Hussain has come to adverse Garda attention as detailed above this application is not recommended.

6

6. The Minister's officials then wrote to the applicant on 4 th March, 2010, informing him of the adverse decision. It is clear from that correspondence that the Minister had endorsed the recommendation for the reasons stated therein. Mr. Hussain was informed that he could re-apply, but that if he did so he "should have due regard to the reasons for the refusal given in the attached submission." Leave to apply for judicial review was granted by this Court (Peart J.) on 14 th June, 2010.

7

7. The first thing to note is that essentially two grounds were given for refusing the application. The first ground was that the applicant had not made an appropriate disclosure pursuant to the requirements of paragraph 6.1 of the form, whereas the second implied that the mere fact that the applicant had become to the attention of the Gardaí necessarily suggested that he was not of "good character" or, at all events, that the Minister might so regard him.

First ground: alleged failure by the applicant to make appropriate disclosure
8

8. So far as the first ground is concerned, it would have to be acknowledged that while the wording of the question might, perhaps, have been more happily phrased, it cannot be said that the applicant was at fault in leaving the form blank. The question is clearly referable to actual proceedings (whether civil or criminal) involving the applicant. So far as the forged banknotes issue was concerned, no charges were proffered as against the applicant and so there was thus plainly no obligation on the applicant to disclose the fact that he was questioned by members of An Garda Síochána in relation to this incident.

9

9. It is true that a search warrant was issued by District Court under s.143 of the Copyright and Related Rights Act 2000, and that - according to the Garda report - a "large amount of counterfeit clothing [was] seized from the applicant." For my part, however, I would greatly doubt if the grant of a search warrant by a District Judge is a judicial "proceeding" properly so called. Strictly speaking, the fact that the power to issue a search warrant is vested in a judge is no more than an endeavour by the Oireachtas to provide a further statutory safeguard for the community by committing the decision to issue the warrant to an independent judicial personage. There is no reason in principle why the power to issue a search warrant should not have been vested in a senior Garda officer, as indeed has been done by, for example, s. 29 of the Offences against the State Act 1939.

10

10. This very point was made by Barr J. in Ryan v. O'Callaghan (High Court, 22 nd July, 1987), in the course of a judgment which upheld the constitutionality of s. 42 of the Larceny Act 1916. That section had vested the power to issue a search warrant in a Peace Commissioner and Barr J. rejected the argument that this involved the transfer of judicial powers to a non-judicial personage:-

"The search of premises by the police under the authority of a search warrant is no more than part of the investigative process which may or may not lead to the arrest and charging of a person in connection with the crime under investigation or any other crime. In my view, the prosecution of an offence commences...

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