Talla v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 12 May 2020
• Neutral Citation: [2020] IECA 135
• Date: 12 May 2020
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2019/184

BETWEEN/

IRFAN TALLA

APPLICANT/APPELLANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2020] IECA 135

Noonan J.

Haughton J.

Power J.

Record Number: 2019/184

High Court Record Number: 2018/398 JR

THE COURT OF APPEAL

Judicial review – Naturalisation – Reasoning – Appellant seeking certiorari of a decision of the respondent refusing the appellant a Certificate of naturalisation – Whether the obligation to give reasons was satisfied

Facts: The High Court (Barrett J) declined to grant the appellant, Mr Talla, certiorari of a decision of the respondent, the Minister for Justice and Equality, refusing the appellant a Certificate of naturalisation on the basis that the appellant was not “of good character” because he had committed certain offences under the Road Traffic Acts. The appellant appealed to the Court of Appeal against the findings of the trial judge. The appellant asserted that: (i) the standard of review set by the trial judge was too narrow; (ii) the Minister acted arbitrarily/capriciously/autocratically in deciding that the appellant did not meet the condition of “good character”; (iii) the correct test for assessing good character is that identified in Hussain v Minister for Justice [2011] IEHC 171, and it is not for the Minister to decide the criteria to be considered when assessing “good character”; (iv) the trial judge erred in finding that the Minister complied with the requirements described in “GKN v Minister for Justice [2014] IEHC 478” to conduct a proper assessment having regard to the outline facts of any offence and any mitigating factors, and to carry out a comprehensive assessment of an applicant’s character; (v) the Minister failed to comply with the duty to give reasons and “not all relevant factors were weighed”; (vi) the trial judge erred in ascribing to the Minister’s use of the phrase “Given the nature of the offences”, a meaning that includes how historical the offence in question is; (vii) the trial judge erred in assessing irrationality, insofar as the Minister’s decision indicated the offences were not brought to the attention of the appellant, when they had been, and explanations were proffered that the existence of which explanations were not referred to in the impugned decision; (viii) the trial judge erred in finding that legitimate expectation of consideration of explanations did not arrive; (ix) the trial judge erred in holding that the appellant would not be prejudiced in any re-application.

Held by Haughton J that the Minister did not consider all relevant materials, and that in any event the decision did not give his essential rationale for deciding character on the basis of the “nature of the offences”.

Haughton J held that he would allow this appeal and order that the Minister’s decision refusing naturalisation be quashed and that the appellant’s application for a certificate be remitted to the Minister for reconsideration in accordance with the terms of this judgment.

Appeal allowed.

JUDGMENT delivered by Mr. Justice Robert Haughton on the 12th day of May, 2020

Introduction

1 This appeal arises out of judicial review proceedings in which Barrett J. declined to grant the appellant certiorari of a decision of the Minister for Justice and Equality (“the Minister”), refusing the appellant a Certificate of naturalisation on the basis that the appellant was not “of good character” because he had committed certain offences under the Road Traffic Acts.

Background Facts

2 Leave to seek judicial review was granted to the appellant by Humphreys J. on 15 May 2018, and background facts appear from the affidavit of the appellant sworn on 15 May 2018 and a supplemental affidavit sworn by the appellant on 9 July 2018 and the exhibits therein referred to, and the affidavit of Ray Murray sworn on behalf of the Minister on 8 October 2018.

3 The appellant was born on 22 December 1987 and is a Kosovan national who entered the state lawfully in 2002 aged approximately fourteen years. He is married to a Kosovan and they have two children both born in Dublin, in 2011 and 2012 respectively. The appellant is currently self-employed and operates a take-away restaurant, but previously was employed as a chef by his older brother Valdet Talla.

4 On 3 March 2011 the appellant was found guilty of speeding (Excess Built up Area Speed Limit 50Km/h) on 27 July 2010. He avers that he didn't receive the notice requiring him to pay a fixed penalty fine, and thereafter he was summoned before the District Court and on pleading guilty he was fined €380. The fine was paid on 4 April 2011.

5 On 26 May 2011 the appellant was convicted of driving without insurance (a further charge of failing to produce was taken into account), and fined €400, but without disqualification or endorsement. The appellant avers that he was driving one of his brother Valdet Talla's cars and that he believed he was covered by insurance at the time as he routinely drove his brother's cars, and a letter from FBD Insurance of 2 July 2014 does confirm that the appellant was a named driver on the relevant policy of Valdet Talla T/A Roma Takeaway during the period from 7 February 2007 to 14 February 2011. However the appellant was not in fact insured on the car which he was driving.

6 The appellant applied for naturalisation on 2 July 2013. The application form contains a series of questions. Under question 11.1 in the “Background” section it askes “Have you ever committed any offences against the laws of Ireland or any overseas country?” to which the appellant answered “No”. Under question 11.2 “Do you have any convictions in the state or any other country (Including Traffic Offences) or any civil judgments made against you?” to which the Appellant answered “No”. It is clear from the facts set out above, and confirmed by a Garda Report furnished to the Irish Naturalisation and Immigration Service (“INIS”) that these answers were not correct.

7 INIS engaged in correspondence with Ferrys Solicitors acting on the appellant's behalf in relation to his application for naturalisation. By letter dated 15 May 2014 INIS inter alia referred to the Garda Report and requested submissions/explanations on the offences listed, confirmation on payment of the fines, and an explanation as to why the appellant did not disclose the offences in his application form.

8 Ferrys Solicitors responded initially on 13 June 2014 and more fully by letter dated 18 August 2014 which enclosed receipts in respect of the payment of the two fines, and then addressed explanations for the offences as follows: -

“We have discussed the position in detail with Mr. Talla in relation to both offences and his explanation in respect of same is as follows: -

1. Speeding 27/07/2010: ‘I confirm that this was me. I was done for speeding. I don't remember ever getting the notice from the Guards about the speeding tickets. I didn't pay and then I got a Summons. I went to Court and I agreed that I had been speeding. The Judge imposed a fine and I paid the fine.’

2. User of MPV, No Insurance: ‘Yes, I remember when this happened. I was always an insured driver on my brother's car. I never knowingly drove without insurance. I was stopped one night by the Guards driving another car that was brother's. I thought I was insured because I was always insured on his cars. I didn't know I wasn't insured driving this car. The Guard prosecuting me [sic]. I went to Court and I didn't oppose what had happened. It had happened. I explained to the Judge about always having insurance and how I misunderstood the position thinking I was insured on this car. The Judge understood what I said but had put a fine on me. The fine was €400 which I paid.”

In respect of these offences we would comment as follows: -

(1) The first offence is a routine speeding offence of a type frequently incurred and, with respect, not of significance in the context of an application for naturalisation. In particular it is noted that the fine was paid on the 4th of April 2011, within one month of the Court date.

(2) It is accepted that a conviction in respect of driving with no insurance may potentially be viewed as a more serious matter. Mr. Talla however was driving without insurance in circumstances where there was a genuine mistake. He always had been insured on his brother's car and in that regard we enclose a letter from FBD Insurance confirming the position in that regard. In the present case he was driving a different car owned by his brother and therefore wasn't insured. It is evident that in imposing penalty by way of fine only and not disqualification or endorsement that the Judge accepted what was outlined to the Court by Mr. Talla on that date. We respectfully submit that had the position been otherwise the Judge would, without doubt, have imposed a more serious fine or ordered disqualification or endorsement of particulars or indeed imprisonment but declined to do so.”

9 In follow up letters of 27 February 2015 and 5 May 2015 INIS requested a copy of the insurance policy in respect of the car that the appellant was driving when charged with no insurance, and indicated that the naturalisation application would not be processed further until receipt of same. That policy was duly forwarded by Ferrys solicitors to INIS on 15 May 2015.

10 By letter of 3 March 2016 INIS enclosed “an interim Garda Vetting Report … indicating that a Court date is pending for 09/05/2016” and this indicated charges of no insurance/failure to produce insurance certificate, failure to produce driving licence/learner permit, driving without driving licence and failing to produce driving licence/learner permit (within 10 days). Ferrys Solicitors replied on 22 June 2016 confirming that they had attended the District Court on that date on the appellant's behalf and that —

“The proceedings related to alleged driving without insurance and driving licence. Mr. Talla...