Mallak v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly
• Judgment Date: 06 December 2012
• Neutral Citation: [2012] IESC 59
• Court: Supreme Court
• Docket Number: [S.C. No. 339 of 2011]
• Date: 06 December 2012

Mallak v Min for Justice

JUDICIAL REVIEW

BETWEEN:

GHANDI NAWAF MALLAK

Applicant/Appellant

-AND-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

[2012] IESC 59

Denham C.J.

Murray J.

Fennelly J.

O'Donnell J.

McKechnie J.

Appeal No. 339/2011

THE SUPREME COURT

MINISTER LAW

Powers

Discretion - Natural justice - Administrative decisions - Obligation to give reasons - Absolute discretion of decision maker - Application for certificate of naturalisation - Whether general obligation at common law to give reasons for administrative decisions - Whether obligation to give reasons in certain situations - Whether respondent's decision invalid - Pok Sun Shum v Ireland [1986] ILRM 593; AB v Minister for Justice [2009] IEHC 449, (Unrep, Cooke J, 8/6/2009) and Hussain v Minister for Justice [2011] IEHC 171, (Unrep, Hogan J, 13/4/2011) considered - Irish Nationality and Citizenship Act 1956 (No 26), ss 14 and 15 - Irish Nationality and Citizenship Act 1986 (No 23), s 4 - Irish Nationality and Citizenship 2004 (No 38 ), s 8 - Civil Law (Miscellaneous Provisions) Act 2011 (No 23), s 33 - Freedom of Information Act 1997 (No 13), s 18 - Freedom of Information (Amendment) Act 2003 (No 9) - Refugee Act 1996 (No 17), s 3 and 17(2) - Appeal allowed (339/2011 - SC - 6/12/2012) [2012] IESC 59

Mallak v Minister for Justice, Equality and Law Reform

MINISTER

Powers

Minister - Powers - Discretion - Natural justice - Administrative decisions - Obligation to give reasons - Absolute discretion of decision maker - Application for certificate of naturalisation - Whether general obligation at common law to give reasons for administrative decisions - Whether obligation to give reasons in certain situations - Whether respondent's decision invalid - Abuissa v Minister for Justice, Equality and Law Reform [2010] IEHC 366, [2011] 1 IR 123; AB v Minister for Justice [2009] IEHC 449, (Unrep, Cooke J, 8/6/2009); Council of the European Union v Bamba (Case C-417/11) (Unrep, ECJ, 15/11/2012); East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] IR 317; Eviston v Director of Public Prosecutions [2002] 3 IR 260; Garvey v Ireland [1981] IR 75; In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; LGH v Minister for Justice, Equality and Law Reform [2009] IEHC 78, (Unrep, Edwards J, 31/1/2009); Hussain v Minister for Justice, Equality and Law Reform [2011] IEHC 171, (Unrep, Hogan J, 13/4/2011); International Fishing Vessels Ltd v Minister for the Marine [1989] IR 149; Jiad v Minister for Justice [2010] IEHC 187, (Unrep, Cooke J, 19/5/2010); McCormack v Garda Síochána Complaints Board [1997] 2 IR 489; Mishra v Minister for Justice [1996] 1 IR 189; Parti écologiste "Les Verts" v European Parliament (Case 294/83) [1986] ECR 1339; Pok Sun Shum v Ireland [1986] ILRM 593; R v Gaming Board for Great Britain [1970] 2 QB 417; R v Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763; Rottmann v Freistaat Bayern (Case C-135/08) [2010] ECR I-01449; State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51; State (Daly) v Minister for Agriculture [1987] IR 165; State (Keegan) v Stardust Victims' Compensation Tribunal [1986] IR 642 and State (Lynch) v Cooney [1982] IR 337 considered - Irish Nationality and Citizenship Act 1956 (No 26), ss 14 and 15 - Irish Nationality and Citizenship Act 1986 (No 23), s 4 - Irish Nationality and Citizenship 2004 (No 38 ), s 8 - Civil Law (Miscellaneous Provisions) Act 2011 (No 23), s 33 - Freedom of Information Act 1997 (No 13), s 18 - Freedom of Information (Amendment) Act 2003 (No 9) - Refugee Act 1996 (No 17), ss 3 and 17(2) - Appeal allowed; decision quashed (339/2011 - SC - 6/12/2012) [2012] IESC 59

Mallak v Minister for Justice, Equality and Law Reform

Facts: The appellant had applied for asylum in the state, and had been successful in his application with the respondent accepting his refugee status. The appellant had then applied for a certificate of naturalisation to the respondent on a number of occasions, the last of which was refused by the respondent in 2008. As the appellant"s wife had been successful in her application for naturalisation, the appellant sought to discover the reasons for his refusal. The respondent refused to provide any reasons, which led to the current matter coming before the courts. Cooke J at first instance refused the appellant"s application for judicial review, and rejected the submission that the decision in question had to be explained by a statement of reasons.

The appellant now sought to appeal that decision to the Supreme Court on three grounds. Firstly, that s 15 of the Irish Nationality and Citizenship Act 1956 ('s 15') was unconstitutional. Secondly, that a requirement to give reasons should be read into s 15, and finally that EU law required the provision of reasons for the decision and the matter should be referred to the CJEU. The respondent stated that although the decision itself was susceptible to judicial review, the absolute discretion provided to him under s 15 meant he was not compelled to explain the decision.

Held by Fennelly J, that the appellant"s submission that s 15 of the Irish Nationality and Citizenship Act 1956 was unconstitutional would not be considered until after the second submission. Fennelly J considered that the fact a decision was made at the absolute discretion of a minister did not permit him to disregard the requirements of natural justice. In the instant case, whilst the appellant could reapply for a fresh decision to the respondent, the failure to provide reasons meant that the appellant could not make an effective application or remedy any point that might lead to a refusal. Such absence meant that the appellant could not determine whether the matter was susceptible to review, which in turn meant the Court could not exercise its power to review decisions effectively.Pok Sun Shum v Ireland [1986] ILRM 59, McCormack v Garda Síochána Complaints Board [1997] 2 IR 489 and State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51 considered.

As the failure to give reasons in the case deprived the appellant of any opportunity to challenge the decision fully, for that reason the decision would be quashed and remitted to the respondent. As such, there was therefore no need to consider the constitutionality of s 15 or referring the matter to the CJEU.

LYNCH, STATE v COONEY & AG 1982 IR 337

PARTI ECOLOGISTE LES VERTS v EUROPEAN PARLIAMENT 1987 2 CMLR 343 1986 ECR 1339

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

FREEDOM OF INFORMATION ACT 1997 S18

FREEDOM OF INFORMATION ACT 1997 S18(1)

FREEDOM OF INFORMATION ACT 1997 S18(2)

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

FREEDOM OF INFORMATION ACT 1997 S27(4)

FREEDOM OF INFORMATION ACT 1997 S27(1)(C)

FREEDOM OF INFORMATION ACT 1997 S23

FREEDOM OF INFORMATION ACT 1997 S24

FREEDOM OF INFORMATION ACT 1997 S26

FREEDOM OF INFORMATION ACT 1997 S28

ABUISSA v MIN FOR JUSTICE 2011 1 IR 123 2010/1/227 2010 IEHC 366

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41(2)(C)

REFUGEE ACT 1996 S3(1)

REFUGEE ACT 1996 S17(2)

REFUGEE ACT 1996 S3(2)

CONVENTION RELATING TO THE STATUS OF REFUGEES 28.7.1951 (GENEVA CONVENTION) ART 34

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S14

IRISH NATIONALITY & CITIZENSHIP ACT 2001 S8(A)

IRISH NATIONALITY & CITIZENSHIP ACT 1986 S4

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S8(A)

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S8(B)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2011 S33(B)(i)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2011 S33(B)(ii)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15A

IRISH NATIONALITY & CITIZENSHIP ACT 2001 S5

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

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

ROTTMANN v FREISTAAT BAYERN 2010 QB 761 2010 3 WLR 1166 2010 AER (EC) 635 2010 ECR I-1449 2010 3 CMLR 2

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

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

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

MIN FOR JUSTICE v HUSSAIN UNREP HOGAN 13.4.2011 2011/26/6875 2011 IEHC 171

GARVEY v IRELAND & ORS 1981 IR 75

HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010

EVISTON v DPP 2002 3 IR 260

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)

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

DALY, STATE v MIN FOR AGRICULTURE 1987 IR 1651988 ILRM 173 1987/2/387

CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 511989 ILRM 104 1988/1/79

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

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 6421987 ILRM 202

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

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

REFUGEE ACT 1996 S3(2)(A)(v)

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 S15(1)(E)

BROADCASTING AUTHORITY ACT 1960 S31(1)

CIVIL SERVICE REGULATION ACT 1956 S7

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE 1989 IR 149 1988/8/2385

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & CMSR OF AN GARDA SIOCHANA 1997 2 IR 4891997 2 ILRM 321 1997/4/1431

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(3)

R v GAMING BOARD FOR GREAT BRITAIN, EX PARTE BENAIM & KHAIDA 1970 2 QB 4171970 2 WLR 1009 1970 2 AER 528

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 296

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