Nkaima Thomas Tabi v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 16 April 2010
• Neutral Citation: [2010] IEHC 109
• Court: High Court
• Date: 16 April 2010

Tabi v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN/

NKAIMA THOMAS TABI

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2010] IEHC 109

[No. 802 J.R./2009]

THE HIGH COURT

IMMIGRATION

Naturalisation

Right to citizenship - Privilege extended on discretionary basis - Whether applicant of good character - Whether citizenship automatic - Mishra v Minister for Justice Equality and Law Reform [1996] 1 IR 189; TV3 Television Co v Independent and Radio Television Commission [1994] 2 IR 439 distinguished - O'Brien v Bord na Móna [1983] IR 255 approved - Application dismissed (2009/802 JR - Cooke J - 16/4/2010) [2010] IEHC 109

Tabi v Minister for Justice, Equality and Law Reform

Facts The applicant had instituted judicial review proceedings seeking to challenge a decision of the Minister refusing the applicant a certificate of naturalisation under s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended). The applicant had accumulated four convictions in the District Court for offences under the Road Traffic Acts for which he had received fines totalling €475. It was argued that the Minister had wrongfully fettered the discretion he should exercise under s. 15 by adopting an "inflexible policy," to the effect that any applicant who had "come to the adverse attention of the Garda Siochana" was not of good character. It was contended that the particular convictions were only four minor offences and could not therefore constitute a basis by themselves for considering that the applicant was not of good character.

Held by Cooke J in refusing the relief sought. It was well settled law that it fell to the Minister to decide what factors or criteria were to be taken into account in assessing whether an individual applicant was of "good character". Unless the Minister relied upon some fact which was wrong or some factor which was clearly absurd it was not the function of the High Court to intervene. The Minister had a sound basis in uncontested facts for making the assessment that the condition of "good character" had not been fulfilled. There was no right to citizenship as such. It was a privilege which the State extended on a discretionary basis in exercise of a primary facet of its sovereignty.

Reporter: R.F.

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15(1)

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

TV3 TELEVISION CO LTD & ORS v INDEPENDENT RADIO & TELEVISION CMSN 1994 2 IR 439

O'BRIEN v BORD NA MONA & AG 1983 IR 255

1 JUDGMENT of Mr. Justice Cooke delivered on the 16th day of April 2010.

2 1. At the conclusion of the applicant's submissions in this case on Wednesday, 14 ^th April, 2010, the Court indicated that it considered the application to be unfounded and that it was therefore unnecessary to hear submissions in reply on behalf of the respondent. The following is the Court's statement of its reasons for that decision.

3 2. The essential reason for refusing to interfere with the decision which is contested in this case can be very briefly stated. The applicant obtained leave by order of Peart J. of 27 ^th July 2009 to seek judicial review of the respondent's decision refusing the applicant a certificate of naturalisation under s. 15 of the Irish Nationality and Citizenship Act 1956 (As Amended). Under that section the Minister cannot issue such a certificate unless he is satisfied that the conditions there set out have been fulfilled by the applicant including that of "good character". It is well settled law that it lies with the Minister to decide what factors or criteria are to be taken into account in assessing whether an individual applicant is of "good character". Unless the Minister relies upon some fact which is wrong or has recourse to some criterion or factor which is clearly absurd or manifestly irrelevant to the operation and the legislative objective of the naturalisation provisions of the Act, it is not the function of the High Court to intervene to direct the basis upon which the Minister's appraisal should be made. In this case the refusal decision which was communicated to the applicant by letter of 2 ^nd June 2009 was based upon one explicit reason namely, that the "good character" condition of s. 15(1) was not met because he had accumulated four convictions in the District Court for offences under the Road Traffic Acts for which he had received fines totalling €475. The fact of those convictions is not contested. That being so, the Minister had a sound basis in uncontested facts for making the assessment that the condition of "good character" was not fulfilled. There is therefore no defect of either fact or law in the Contested Decision which would justify the issue of an order of certiorari to quash it.

4 3. That is the essential reason for the Court's refusal to quash this decision but for the sake of completeness the Court will deal with the specific arguments sought to be advanced in support of the application.

5 4. First, it was argued that the Minister had wrongfully fettered the discretion he should exercise under s. 15 by adopting an "inflexible policy" to the effect that any applicant who had "come to the adverse attention of the Garda Síochána" was, upon that ground, not of good character. The Minister thereby precluded himself from looking genuinely at the individual circumstances of each case and making an assessment as to whether the applicant was in fact of good character.

6 5. In this case the letter communicating the decision dated 2 ^nd June, 2009, referred the applicant to an attached form in which the recommendation made to the Minister for his consideration was...