Mallak v Minister for Justice Equality & Law Reform,  IESC 59 (2012)
THE SUPREME COURTJUDICIAL REVIEW
Appeal No. 339/2011
GHANDI NAWAF MALLAKApplicant/Appellant
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Judgment delivered the 6th day of December 2012 by Mr Justice Fennelly
The phenomenon that is the modern law of judicial review, though rooted in history, has witnessed extraordinary development over the past thirty years. At its heart it insists that, to adapt the language of this Court in The State (Lynch) v. Cooney  I.R. 337, any administrative decision, in that case an opinion of a Minister which enabled him to make an order prohibiting broadcasts, must be “bona fide held and factually sustainable and not unreasonable.” The underlying principles of judicial review are universal. Courts of the common law have developed and expanded the historic rules of natural justice, in more recent imes with inspiration from international human-rights instruments such as the European Convention on Human Rights and, in this jurisdiction, from the Constitution. The Court of Justice of the European Union speaks of a “complete system of legal remedies.”( Case 294/83 Parti écologiste “Les Verts” v European Parliament  ECR 1339, paragraph 23). The rules are composed of a number of inter-related features, the underlying fundamental presumption being that those to whom discretionary powers are entrusted will exercise them fairly insofar as they may affect individuals. Where fairness can be shown to be lacking, the law provides a remedy. The right of access to the courts is an indispensable cornerstone of a State governed by the rule of law.
The particular issue for decision on this appeal is the extent to which decision-makers are obliged to disclose the reasons for which they are made. This question is, of its nature, closely related to other features of the rules of natural justice compendiously covered by the broad principle of audi alteram partem, which may include the giving of prior notice of impending decisions, of the matters which the decision-maker will take into account and, in appropriate cases, the disclosure of information and even, in some cases, the holding of a hearing.
While our courts have extensively considered the adequacy of reasons when they have actually been given, there has been no principled consideration of the question whether a general obligation to furnish reasons exists at all or, if it does not, in what cases reasons should be given and why. There is a persistent view, as evidenced by the High Court judgment in the present case, that there is no general obligation at common law to give reasons for administrative decisions. There must be a close relationship between the process of giving prior notice and giving reasons after the event.
The issue presents itself in a particularly clear-cut way in the present appeal. The appellant is a Syrian national. Having applied successfully for asylum and being declared to be a refugee by the respondent Minister, he applied for a certificate of naturalization, but was refused. The Minister relied on his absolute discretion and declined to provide any reason for his decision. He insisted and continues to insist that he is not obliged to explain his decision.
The appellant is a national of Syria. He arrived in Ireland in the company of his wife in 2002. They both applied for and were granted refugee status on 22nd November 2002, by formal declarations of the Minister. That declaration informed the appellant that he had, inter alia, the following rights:
• the right to reside in the State;
• the same rights of travel in order to or from the State as those to which Irish citizens are entitled;
• the right to have access to the courts in the like manner and to the like extent in all respects as an Irish citizen.
The appellant is qualified as a lawyer in Syria. He has worked in the construction industry in Ireland.
He made at least one application for naturalisation prior to the one at issue in these proceedings. He says that he was refused on the ground of an insufficient period of residency in the State. It should also be noted that the Minister informed the appellant early on that applications were placed in chronological order and that it would take a year to a year and half before his own application would be examined.
On the 9th December 2005, the appellant made a new application to the respondent, (hereinafter “the Minister”) for a certificate of naturalisation with a view to obtaining citizenship pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956, as amended (hereinafter the “Act of 1956”). In September 2008, he wrote complaining about the delay which had then elapsed of more than two and a half years in dealing with his application. He received a reply stating that no decision had yet been made. The Minister notified the appellant in a letter dated 20th November 2008 that he was refusing his application. The appellant’s wife, however, was granted a certificate of naturalisation in October 2008 and is now an Irish Citizen.
The Minister’s letter of 20th November 2008 stated:
“The Minister has considered your application under the provisions of the Irish Nationality and Citizenship Acts 1956 and 1986, as amended and has decided not to grant a certificate of naturalisation.
In reaching this decision, the Minister has exercised his absolute discretion, as provided for by the Irish Nationality and Citizenship Acts 1956 and 1986 as amended. There is no appeals process provided under this legislation. However, you should be aware that you may reapply for the grant of a certificate of naturalisation at any time. Having said this, any further application will be considered taking into account all statutory and administrative conditions applicable at the time of the application.”
The appellant’s solicitor wrote to the Minister requesting access to documents pursuant to the Freedom of Information Acts, 1997 and 2003. Some documents were provided, but the solicitors then applied pursuant to s. 18 of the Act of 1997 for a statement of the reasons for the refusal of his application for naturalisation. Section 18(1) imposes a general obligation on every head of a public body, on application by any person affected by any of its acts, to provide a written statement of reasons for the act. The Minister responded in a letter dated 26th January 2009, declining the request “in accordance with Section 18(2)) of the Act.” It was later explained that it had been intended to refer to s. 18(2)(b). That provision refers to a situation where “the non-disclosure of [the record’s] existence or non-existence is required by this Act.” The effect of this response, as later explained, was that the Minister was not obliged to provide a statement of reasons. The Office of the Information Commissioner informed the appellant’s solicitors, by letter dated 17th December 2009, that he was satisfied that the Minister’s decision to refuse to provide reasons for the decision to refuse his request for naturalisation was “in line with section 18(2)” of the Act and was correct. A good explanation of the scope of this ground for refusal is contained in the decision of the Senior Investigator of 9th February 2010:
“The FOI Act requires a public body not to disclose whether or not a record exists in circumstances where to do so would cause the harms envisaged in particular exemptions in the Act. For example, section 27(4) of the FOI Act provides that a public body shall not disclose the existence or non-existence of a record if to do so would prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates (section 27(1)(c). Similar provisions are contained in sections 23, 24, 26 and 28 of the FOI Act.”
Given the nature of the application, the Senior Investigator said that he was “unfortunately not in a position to elaborate further…” That decision was affirmed on appeal and review pursuant to the provisions of the Freedom of Information Acts.
It is fair to add, however, that, by letter dated 11th January 2010, the Office of the Information Commissioner acknowledged that the circumstances were such that the appellant was left none the wiser as to why his naturalisation request and subsequent request for reasons were refused. As was pointed out, it would have been open to the appellant to pursue the matter pursuant to the Acts by way of appeal on a point of law to the High Court. The present appeal is not concerned with the operation of procedures pursuant to those Acts.
The appellant pursued, in parallel, his desire to obtain access to material adverse to him which he believed was held in the Department of Justice, Equality and Law Reform by means of requests under the Data Protection Acts. Following further correspondence, the Department provided a schedule of records which included a "Garda Report" and a "Garda Request Form." The appellant maintains that these documents had never previously been disclosed to him and that he had never had an opportunity to meet any adverse findings contained in them. He speculates that these "must be the documents which were deemed to be exempt records under the Freedom of Information Act."
By order dated 11th May 2009 the applicant was granted leave to apply for judicial review by the High Court (by Peart J.) of the decision communicated by the Minister on 20th November 2008. The grounds for the application were that the appellant did not know the reasons why his application for naturalisation had been refused. The appellant claimed that he had a legitimate expectation that he would be granted naturalisation in a manner consistent with the Minister’s obligations under the Geneva Convention relating to the Status of Refugees and that it was unfair and unreasonable to deny him those reasons...
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