Mishra v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 21 May 1996
• Neutral Citation: 1996 WJSC-HC 4227
• Docket Number: [1994 No. 290 J.R.]
• Court: High Court
• Date: 21 May 1996

MISHRA v. MIN JUSTICE

JUDICIAL REVIEW

BETWEEN

PARSHURAM MISHRA

APPLICANT

AND

THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

1996 WJSC-HC 4227

No. 290 JR/1994

THE HIGH COURT

Synopsis:

ALIENS

Naturalisation

Application - Dismissal - Grounds - Sufficiency - Minister of State - Discretion - Exercise - Policy guidelines insufficient to justify unfair procedures - Decision to dismiss application quashed - Expiration of total period for temporary registration of foreign medical practitioner in the State - Irish Nationality and Citizenship Act, 1956 (No. 26), s. 15 - (1994/290 JR - Kelly J. - 21/5/96) - [1996] 1 I.R. 189

|Mishra v. Minister for Justice|

MINISTER OF STATE

Powers

Exercise - Statute - Discretion - Conferment - Discretion to be exercised in accordance with requirements of constitutional justice - Adoption of policy guidelines - Rejection of alien's application for certificate of naturalisation - Rejection based in part on assumption which was not justified by evidence avail able to Minister - (1994/290 JR - Kelly J. - 21/5/96)1996 1 I.R. 189

|Mishra v. Minister for Justice|

NATURAL JUSTICE

Fair procedures

Certificate - Application - Determination - Predetermination - Adoption of policy guidelines - Rejection of alien's application for certificate of naturalisation - Rejection based in part on assumption which was not justified by evidence available to Minister of State - (1994/290 JR - Kelly J. - 21/5/96)1996 1 IR 189

|Mishra v. Minister for Justice|

Citations:

MEDICAL PRACTITIONERS ACT 1978

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

CONSTITUTION ART 15.2.1

IRISH NATIONALITY & CITIZENSHIP ACT 1986 S4

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16(b)

EAST DONEGAL CO-OP V AG 1970 IR 317

SHUM V IRELAND 1986 ILRM 593

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

1 Judgment of Mr. Justice Kelly delivered the 21st day of May, 1996

THE APPLICANT

2 The Applicant (Dr. Mishra) is an Indian national. He was married to another Indian national on the 11th December, 1982 in Bihar. He has two children. One of the children was born in October 1985 in Birmingham, England. The second was born in Kilkenny on the 5th July, 1989 and is an Irish citizen.

3 He obtained a Bachelor's Degree in Medicine and Surgery from Ranchi University in India on the 15th March, 1982. From then until September 1984, he practised medicine in India. He then took up a clinical attachment in general medicine at Manor Hospital in Walsall, England.

4 In 1986, Dr. Mishra came to Ireland. He obtained a series of temporary appointments in various hospitals throughout the State. He obtained a Diploma in Tropical Medicine from the Royal College of Physicians of Ireland and the Royal College of Surgeons in Ireland in November 1987. He has been studying for his membership of the Royal College of Physicians of Ireland but has not yet obtained that qualification.

5 Throughout his stay in Ireland, he has at all times complied with the laws of this State. In particular, he has made himself known to the Aliens Office and during the time that he was working, obtained all necessary work permits.

6 In order to practice medicine in this country, it became necessary for him to obtain registration with the Medical Council pursuant to the provisions of the Medical Practitioners Act, 1978. The only type of registration available to him was temporary registration. This form of registration may only be obtained for a maximum period of five years after which full registration is required.

7 Until the month of October 1992, doctors who acquired their qualifications outside the European Union had to satisfy two conditions before full registration on the Irish Medical Register was available to them. They had to acquire:-

8 (a) Irish citizenship, and

9 (b) a post graduate recognised qualification.

10 In October 1992, the Medical Council amended its rules so as (inter alia) to permit such foreign doctors to obtain full registration without first obtaining Irish citizenship. It follows that under these revised rules, Irish citizenship is no longer a prerequisite for such foreign doctors to obtain full registration with the Medical Council.

THE APPLICATION

11 In August 1991, Dr. Mishra applied to the first named Respondent (the Minister) for naturalisation pursuant to the provisions of the Irish Nationality and Citizenship Acts, 1956 and 1986(the Act).

12 The application was made on a form which was duly completed by Dr. Mishra. The information on the form disclosed, inter alia, his name, address, occupation, place and date of birth, the names of his father and mother and their respective places of birth, his marital status, his wife's name and her place and date of birth, the date and place of marriage and the names, dates of birth and places of births of their two children. The form contained a full record of his places of residence during the last nine years and the duration of the residence in each place disclosed. Question No. 20 of the form asked if he intended to have his usual or principal place of residence in the State after naturalisation. He replied in the affirmative. A like answer was given to the question concerning his financial solvency.

13 Dr. Mishra executed a statutory declaration concerning the particulars set forth in the application form. He declared solemnly and sincerely that they were true and the declaration was made before a Commissioner for Oaths. The form was accompanied by references from three Irish citizens. Each of them attested to the fact that they were neither the solicitor nor the agent for Dr. Mishra, and that they supported, from personal knowledge of and intimate acquaintance of him for a period of five years, his application for citizenship. The form contained a warning to the effect that a false statement on it was an offence punishable by a fine of up to £500 and/or imprisonment for up to six months.

14 Having submitted that form, he received a letter from an official in the Aliens Division of the Department of Justice dated the 5th November, 1991. That acknowledged receipt of the application and requested the submission of a photostat copy of his Certificate of Registration with the Medical Council. This was apparently furnished to the Department. Thereafter, nothing appears to have happened for a period of approximately 14 months.

15 On the 4th February, 1993 Dr. Mishra received a letter from the Department of Justice asking him to submit certain documents including his passport, his Garda Siochana Certificate of Registration, his current employment permit and the Certificate of Registration with the Medical Council. He complied with this request. Nothing further was heard from the Department until Dr. Mishra received a letter from it dated the 11th August, 1993. That letter informed him that the Minister was not prepared to grant him a Certificate of Naturalisation. No reasons were given for the Minister's refusal.

16 On the 23rd May, 1994 the Applicant's Solicitors wrote to the Department of Justice seeking the grounds upon which the Minister had refused the Certificate of Naturalisation. The letter also requested information as to the possibility of an appeal from the refusal. That letter was responded to on the 9th June, 1994. The response pointed out that the grant of a Certificate of Naturalisation was at the absolute discretion of the Minister and indicated that it had always been the policy of successive Ministers for Justice not to give reasons for decisions taken in particular cases. It also pointed out that there is no set form of appeal.

THESE PROCEEDINGS

17 On the 11th July, 1994 leave was given by this Court (Carney J.) to seek judicial review of the Minister's decision communicated to the Applicant on the 11th August, 1993. Leave to apply for judicial review was given on all but the last of the grounds set forth in the statement grounding the application. That ground, in respect of which permission was not granted, called into question the constitutionality of the Act.

18 The principal relief which is sought is an Order of Certiorari quashing the refusal of the Minister to grant naturalisation to Dr. Mishra. All of the other reliefs save that set forth at ground No. 4 are ancillary to this principal relief. The relief sought at ground No. 4 clearly cannot be granted. It seeks a declaration that Dr. Mishra is entitled to a Certificate of Naturalisation pursuant to the provisions of the Act. Such a relief would involve this Court in a determination of the Applicant's case on its merits. That is a matter wholly and exclusively within the purview of the Minister. Any attempt by this Court to become involved in a consideration of the Applicant's case on its merits would be an abuse of judicial review. It would involve the Court trespassing upon territory which is the sole responsibility of the Minister. Accordingly, the relief which is sought at paragraph 4 of the statement grounding the application for judicial review is refused.

THE GROUNDS

19 Eight grounds were relied upon by the Applicant to justify this application. They are as follows:-

20 1. The Minister her servants or agents acted without lawful authority.

21 2. The Minister her servants or agents exercised her absolute discretion in an arbitrary and unjust manner.

22 3. Dr. Mishra has complied with the statutory requirements of the Irish Nationality and Citizenship Act, 1956 for the purposes of applying for a Certificate of Naturalisation.

23 4. Dr. Mishra has been lawfully in possession of residency visas, which first visa was issued on the 28th May, 1986 being renewed annually thereafter and which final visa expired on or about the 31st December, 1994.

24 5. Dr. Mishra has been in...