M.N.N v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Power
• Judgment Date: 13 July 2020
• Neutral Citation: [2020] IECA 187
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Record Number: 2019/41
• Date: 13 July 2020

BETWEEN/

M.N.N.

APPELLANT

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2020] IECA 187

Costello J.

Power J.

Binchy J.

Appeal Record Number: 2019/41

THE COURT OF APPEAL

Order of certiorari – Certificate of naturalisation – Good character – Appellant seeking an order of certiorari quashing a decision of the respondent – Whether there was a breach of the requirements of the rules of natural and constitutional justice

Facts: The High Court (Barrett J) refused to grant an order of certiorari quashing a decision of the respondent, the Minister for Justice and Equality, to refuse an application for a certificate of naturalisation on the basis that the appellant was not of “good character”. The appellant appealed to the Court of Appeal. Three grounds of appeal were advanced. The first related to an alleged error in law on the part of the trial judge in finding the Court was limited to reviewing whether the Minister acted arbitrarily, capriciously or autocratically in reaching his decisions. Citing Mallak v Minister for Justice [2011] IEHC 306, the appellant submitted that the Minister was required to observe the requirements of the rules of natural and constitutional justice and that the trial judge failed to encompass this aspect of review. The second ground of appeal was that the trial judge erred in fact in finding that the Minister “did not consider the ‘alleged incident’ as more than alleged” in circumstances where the recommendation to the Minister stated, on its face, that “Given the nature of the [minor road traffic] offences and the alleged incident I am not satisfied that the applicant is of good character and I would not recommend this applicant for a Certificate of Naturalisation. The appellant also asserted that the trial judge further erred in this finding in circumstances where it had not been brought to the decision maker’s attention that the allegations against the appellant had been withdrawn and the proceedings struck out. The third ground of appeal was that the trial judge applied the wrong test in determining that the Minister had not breached the appellant’s rights to fair procedures in failing to consider the substantive submissions made by the appellant on 6 November 2017. Noting that the trial judge observed that a senior department official had averred that they were considered and that following those considerations his view of the recommendation did not change, the appellant asserted that the correct test was whether the submissions were considered before the Ministerial decision had been made.

Held by Power J that the conclusion reached by the Minister cannot be said to have “flowed from the evidence” before him in circumstances where there was no reference in the impugned decision to any of the contextual or exculpatory evidence that was on the file. Power J found that the trial judge erred in his finding that the Minister did not consider the “alleged incident” as more than alleged and that he had also erred in finding that the Minster had considered the appellant’s submissions in reaching a decision on the appellant’s application for naturalisation. Power J also found that the Minister’s decision did not provide his rationale for determining that, based on the two road traffic offences and an alleged incident, the appellant had failed to meet the good character requirement of s. 15 of the Irish Nationality and Citizenship Acts 1956 to 2004. Power J was not satisfied that the evidence established that the Minister took into account all relevant information before reaching a decision not to grant the appellant a certificate of naturalisation. Power J concluded that there was a breach of the requirements of the rules of natural and constitutional justice.

Power J held that she would allow this appeal and order that the Minister’s decision refusing naturalisation be quashed and that the appellant’s application for a certificate of naturalisation be remitted to the Minister for reconsideration in accordance with the requirements of natural and constitutional justice.

Appeal allowed.

JUDGMENT of Ms. Justice Power delivered on the 13^th day of July 2020

1. This appeal arises from the refusal of the High Court (Barrett J.) to grant an order of certiorari quashing a decision of the respondent (‘the Minister’) to refuse an application for a certificate of naturalisation on the basis that the applicant (‘the appellant’) was not of ‘good character’.

2. Leave to seek judicial review was granted by Humphreys J. on 14 May 2018. The grounds upon which judicial review was sought included an alleged breach of the rules of natural and constitutional justice in that the Minister's decision to refuse the certificate was based on ‘an alleged incident’ wherein s. 12 of the Child Care Act 1991 had been invoked. A further alleged breach of the rules of natural and constitutional justice was said to consist of a failure on the part of the Minister to consider substantive submissions that had been made in respect of the appellant's application.

Background

3. The appellant was born in Angola and arrived in Ireland on 2 January 2003.1 His application for asylum was refused but he was granted leave to remain on humanitarian grounds. There was a reference in the file to his traumatic past involving torture and imprisonment. The grant of humanitarian leave to remain has been renewed, periodically, since 2008. The appellant is separated from his former wife. He is the father of five children, three of whom were born in the State and all of whom are Irish citizens.

4. An initial application for naturalisation was made in 2012 but was refused on the grounds that the appellant had insufficient reckonable residence in the State. On 16 October 2013 the appellant submitted a fresh application for a certificate of naturalisation and it is that application which is the subject of this appeal. On 28 November 2013 he received a letter from the Irish Naturalisation and Immigration Service (‘INIS’) acknowledging receipt of his application and advising that it is a statutory requirement that applicants for naturalisation be of ‘good character’.

5. Upon making his application for naturalisation the appellant disclosed that he had two convictions for road traffic offences. The offences, which were strict liability offences, were committed in December 2012 and related to a failure to display a motor tax disc and a failure to display an insurance disc.2 A fine of €350 was imposed in respect of each offence. At the time of his application for naturalisation the appellant had no criminal or other charges pending against him.

6. As is usual in such applications, the Minister, pursuant to s. 8 of the Immigration Act 2003, requested An Garda Síochána to provide a report about the appellant's background. A Garda Report dated 29 July 2014 was furnished and it disclosed the aforesaid traffic offences.

7. On 9 September 2014 the appellant was asked by the Minister to provide explanations or furnish submissions in relation to the offences listed in the Garda Report. The appellant replied, promptly, by letter dated 12 September 2014. He explained that although the convictions were dated 21 June 2013 the offences in question had occurred on 9 December 2012. Two ‘Fixed Charge’ notices in the sum of €60 each had been sent to him at a previous address in County Louth. In late December 2012, the appellant and his wife had moved to a new address. In or about this time their marriage relationship was breaking down. The appellant moved out of the family home and eventually found employment in Galway, from where he travelled to Dundalk at weekends to see his children as per a court access order.

8. In preparing his application for citizenship the appellant had contacted the District Court in Galway to ascertain whether there were any charges pending against him. At this point he learned of the imposition of the fines in respect of the two traffic offences. He explained that the Fixed Charge letters had been forwarded to the family home address by the letting agent of the previous premises in which he had lived. As the marriage relationship had ended acrimoniously, his ex-wife had hidden the letters. Similarly, when summonses for his attendance at court had been issued and delivered, his ex-wife had also hidden those. Consequently, as he was no longer living in the marital home, he had no knowledge that Fixed Charges were overdue or that he had been summoned to appear in Court. Upon discovery of these matters, he had paid the fines, immediately. The file before the Court discloses that the appellant furnished to the Minister a copy of his policy of motor insurance confirming cover from 24 February 2012 to 23 February 2013 and a copy of his motor taxation disc valid for the period in question.

9. For reasons unknown on 9 September 2015, the Minister appears to have made a second request for information on the appellant to An Garda Síochána. A second Garda Report dated 4 January 2016 issued. In addition to the two road traffic offences referred to above, the second Garda Report contained a reference to an incident that occurred on 31 May 2013 at an address in County Louth which was the home that the appellant had shared with his former wife. The incident was described in terms of s. 12 of the Child Care Act 1991 having been invoked.3 The appellant is described in the Report as a ‘witness’ and the details of the incident are set out in the following terms:-

“Section 12 of Child Care Act Invoked in relation to five children following domestic altercation between parents, father assaulted mother causing her injuries. Mother disclosed to Gardai that children were not safe with father.”

10. The Minister wrote to the appellant on 12 February 2016 seeking details of the circumstances surrounding the incident noted on the Garda Report and requesting that the appellant furnish any...