A. P. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 17 January 2014
• Neutral Citation: [2014] IEHC 17
• Court: High Court
• Date: 17 January 2014

[2014] IEHC 17

THE HIGH COURT

[No. 347 J.R./2013]

P (A) v Min For Justice

JUDICIAL REVIEW

BETWEEN

A. P.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

RSC O.31 r18

RSC O.31 r15

AMBRIORIX v MIN FOR THE ENVIRONMENT (NO 1) 1992 1 IR 277

MURPHY v DUBLIN CORP 1972 IR 215

FREEDOM OF INFORMATION ACT 1997

MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012 IESC 59

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION) ART 34

FREEDOM OF INFORMATION ACT 1997 S18

FREEDOM OF INFORMATION ACT 1997 S24

FREEDOM OF INFORMATION ACT 1997 S25

FREEDOM OF INFORMATION ACT 1997 S26

FREEDOM OF INFORMATION ACT 1997 S24(2)

FREEDOM OF INFORMATION ACT 1997 S24(1)

FREEDOM OF INFORMATION ACT 1997 S25(1)

FREEDOM OF INFORMATION ACT 1997 S23

RSC O.38 r17

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

MURPHY v DUBLIN CORP 1972 IR 215

KEATING v RADIO TELEFIS EIREANN UNREP SUPREME 9.5.2013 2013 IESC 22

COMPAGNIE FINANCIERE & COMMERICALE DU PACIFIQUE v PERUVIAN GUANO CO 1882 1 QBD 55

Judicial review - Citizenship - Naturalisation - Discovery - Reasons for refusal - Inspection of documents - Confidentiality - Public interest - Security of state - Fair procedures - Effective legal remedy - Constitutional justice - Certiorari - Freedom of information Act 1997

In these proceedings, the applicant had brought judicial review proceedings to challenge the respondent”s decision to refuse to grant the applicant a certificate of naturalisation. The reliefs sought were a declaration that the respondent”s failure to provide reasons for refusing to grant the certificate was unlawful, and an order of certiorari quashing the decision. The respondent had refused to disclose a reason in this regard on the basis of the Freedom of information Act 1997.

In this interlocutory matter, the applicant brought an application for an order of inspection of three specified documents. The applicant argued that the respondent”s action breached his right to fair procedures, constitutional justice and to seek an effective judicial remedy. It was also said that the respondent was obliged to produce the documents in question for inspection once the requisite notice was served, pursuant to the provisions of O. 31, r. 18 of the Rules of the Superior Courts. The respondent argued that an order should not be made because the relevant documents were privileged on the basis of public interest and the security of the state; specifically, it was said that rigorous checks are made when an application for naturalisation is being considered and that relevant information on the character and conduct of an applicant is obtained from foreign agencies on a strictly confidential basis. It was pointed out that this confidentiality must be respected otherwise information of this kind may not be made available to the respondent in future.

Held by McDermott J that Order 31, r. 18 of the Rules of the Superior Courts empowered the court to make an order for inspection in such place and in such manner as it saw fit, but that it would be inappropriate to make an order if it wasn”t necessary for disposing fairly of the case or for saving costs. It was also said that pursuant to Ambiorix v. Minister for the Environment (No. 1) [1992] 11.R. 277, it was for the Court to decide which public interest should prevail – the public interest involved in the production of evidence and the public interest involved in the exemption from production of documents on the basis of state security.

It was held that it was clear from the refusal to grant the applicant a certificate of naturalisation that the respondent had reached his decision on the basis of information received from foreign sources. Nevertheless, the failure to disclose any reasons for the refusal of the naturalisation application meant that the applicant would be inhibited in challenging the decision or bringing a new application. It was also pointed out that on consideration of the three specified documents, it was apparent that they were all relevant to the respondent”s decision. Further, it was said that the respondent had wrongly categorised his privilege in refusing inspection of the documents as a matter of state security - at worst, the inspection of the documents would be inimical to the interests of the state. Nonetheless, it was pointed out that the use of confidential information and intelligence reports was an important element in the administration of justice.

As a result, the three documents were considered in turn. It was held that the Court was not satisfied that the first document, which was a note of the applicant”s application for naturalisation, posed any threat to the interests of the state and should be made available for inspection. In terms of the second document, which was a note that referred to information on the applicant that had been received by the respondent on a confidential basis, it was held that only parts should be made confidential. As a result, it was ordered that a redacted version should be made available for inspection. On the third document, which was related to the second document, it was ruled that it was in the public interest for the entire note to remain confidential.

1 1. This is an application seeking the inspection of documents in the course of judicial review proceedings pursuant to the provisions of O. 31, r. 18 of the Rules of the Superior Courts. Order 31, r. 15 provides that a party to proceedings shall be entitled, at any time by notice in writing, to give notice to the other party in whose affidavit reference is made to a document, to produce that document for inspection and permit copies thereof to be taken. The consequences of failing to comply with the notice to produce the documents in issue is that the party in default may not:-

"put any such documents in evidence on his behalf in such cause or matter, unless he shall satisfy the court that…he had some…cause or excuse which the court shall deem sufficient for not complying with such notice; in which case the court may allow the same to be put in evidence on such terms as to costs and otherwise as the court shall think fit".

Order 31, r. 18 empowers the court to make an order for inspection in such place and in such manner as it may think fit, but shall not make an order if "it is not necessary either for disposing fairly of the cause or matter or for saving costs".

2 2. The respondent is entitled to resist an application for inspection of otherwise relevant documents by claiming that the documents are privileged on the basis of public interest and the security of the state.

3 3. The parties in this case agreed that the legal principles applicable to the determination of whether a public interest privilege is properly asserted are well settled. In Ambiorix v. Minister for the Environment (No.l) [1992] 1 I.R. 277, Finlay C.J. summarised the relevant principles initially elaborated in Murphy v. Dublin Corporation [1972] I.R. 215 as follows:-

2 "1. Under the Constitution the administration of justice is committed solely to the judiciary in the exercise of their powers in the courts set up under the Constitution.

2 Power to compel the production of evidence (which of course includes a power to compel the production of documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the state.

3 Where a conflict arises during the exercise of judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the state, it is the judicial power which will decide which public interest shall prevail.

4 The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the state or the efficient discharge of the functions of the executive organ of the government.

5 It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision."

4 4. For the purpose of that determination the court has been furnished at its request, with three documents over which privilege has been claimed in order to assist in its determination of the relevance, if any, of the documents to the issues that arise between the parties. The court has considered each of the documents separately and their cumulative affect in the context of the evidence in the case.

5 5. This Court granted leave to the applicant to apply for judicial review on 13 ^th May, 2013, seeking, inter alia, a declaration that the failure by the respondent to disclose the reason for his decision to refuse to grant the applicant a certificate of naturalisation on 30 ^th April was unlawful, and an order of certiorari quashing the decision refusing to grant naturalisation to the applicant. The grounds upon which leave was granted are:-

2 "1. The refusal of the respondent to disclose his reason for refusing the applicant's application for naturalisation is unlawful. It is, inter alia, in breach of the applicant's right to fair procedures, to constitutional justice and to seek an effective judicial remedy. It prohibits the applicant from examining whether the refusal to grant him a certificate of naturalisation is lawful, and impairs him bringing an effective application in the future.

2 The respondent's reliance on the Freedom of Information Act 1997, as amended, as a basis for not disclosing any reason for the refusal of the applicant's application for naturalisation is unlawful. In the case of Mallak v. Minister for Justice, Equality and Law Reform, Mr. Mallak had requested the reason...