Judgment Title: Hussain -v- MJELR
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 171
THE HIGH COURT
2010 803 JR
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice Hogan delivered on 13th April, 2011
1. Section 15 of the Irish Nationality and Citizenship Act 1956 (as inserted by s.4 of the Irish Nationality and Citizenship Act 1986) is a decidedly unusual statutory provision in that it gives the Minister for Justice, Equality and Law Reform the power to grant a certificate of naturalisation “in his absolute discretion” provided that he is satisfied that certain statutory requirements are satisfied. One of these statutory requirements (s. 15(1)(b)) is that the Minister must be satisfied that the applicant is of “good character”. The fundamental issue which presents itself in these judicial review proceedings is whether the Minister violated the applicant’s constitutional right to fair procedures by relying on material which had not previously been disclosed to the applicant and in respect of which - or, at least, so the argument runs - he had no opportunity of dealing.
2. In the present case Mr. Hussain applied for a certification of naturalisation in order to acquire Irish citizenship, but this was refused by the Minister on good character grounds. Mr. Hussain is originally from Pakistan, but he has been living here lawfully since 2000. He is currently living in Co. Wexford where he has been, for the most part, in regular employment.
3. Mr. Hussain applied for a certificate of naturalisation in 21st December, 2005. Paragraph 6.1 of the relevant form (described as Form 8: Application by a Person of Full Age for Naturalisation as an Irish Citizen) required him to give:-
The Garda Síochána (Ireland’s national police) will be asked to furnish a report about your background. Any criminal record or ongoing proceedings will be taken into consideration by the Minister in deciding whether to grant naturalisation or not. Details of any proceedings, criminal or civil, in the State or elsewhere, should be disclosed at Question 1.9 on the application form.”
7. The first thing to note is that essentially two grounds were given for refusing the application. The first ground was that the applicant had not made an appropriate disclosure pursuant to the requirements of paragraph 6.1 of the form, whereas the second implied that the mere fact that the applicant had become to the attention of the Gardaí necessarily suggested that he was not of “good character” or, at all events, that the Minister might so regard him.
First ground: alleged failure by the applicant to make appropriate disclosure
9. It is true that a search warrant was issued by District Court under s.143 of the Copyright and Related Rights Act 2000, and that - according to the Garda report - a “large amount of counterfeit clothing [was] seized from the applicant.” For my part, however, I would greatly doubt if the grant of a search warrant by a District Judge is a judicial “proceeding” properly so called. Strictly speaking, the fact that the power to issue a search warrant is vested in a judge is no more than an endeavour by the Oireachtas to provide a further statutory safeguard for the community by committing the decision to issue the warrant to an independent judicial personage. There is no reason in principle why the power to issue a search warrant should not have been vested in a senior Garda officer, as indeed has been done by, for example, s. 29 of the Offences against the State Act 1939.
10. This very point was made by Barr J. in Ryan v. O’Callaghan (High Court, 22nd July, 1987), in the course of a judgment which upheld the constitutionality of s. 42 of the Larceny Act 1916. That section had vested the power to issue a search warrant in a Peace Commissioner and Barr J. rejected the argument that this involved the transfer of judicial powers to a non-judicial personage:-
(b) that evidence that such an offence has been, or is about to be, committed is in on or at those premises or that place,
(ii) to make an inventory or prepare other evidence of infringement of copyright or potential infringement of copyright;
(iii) to seize anything found there which he or she believes on reasonable grounds may be required to be used in evidence in any proceedings brought in respect of an offence under this Act;
(iv) to require any person found there to give his or her name and address.”
13. It follows, therefore, that, objectively speaking, the applicant cannot be faulted for failing to make disclosure of these matters in paragraph 6.1, since it clear that the issue of a search warrant was not a civil or criminal proceeding and even it was, it was not a proceeding “which [has] been taken against” the applicant.
Second ground: whether the applicant was of “good character”
15. It is against this background that the words “good character” must be understood and measured. Viewed in this statutory context, it means that the applicant’s character and conduct must measure up to reasonable standards of civic responsibility as gauged by reference to contemporary values. The Minister cannot, for example, demand that applicants meet some exalted standard of behaviour which would not realistically be expected of their Irish counterparts. Nor can the Minister impose his or her own private standard of morality which is isolated from contemporary values.
16. This brings us to the question of the “absolute” nature of the Minister’s discretion under s.15. By describing the discretion as “absolute”, the Oireachtas intended to emphasise that the grant by the Minister of a certificate of naturalisation “is the purely gratuitous conferring of a privilege in exercise of the sovereign authority of the State”: Jiad v. Minister for Justice, Equality and Law Reform  IEHC 187, per Cooke J..
17. This description nevertheless cannot mean, for example, that the Minister is freed from the obligations of adherence to the rule of law, which is the very “cornerstone of the Irish legal system”: Maguire v. Ardagh  IERSC 21,  1 IR 385 at 567, per Hardiman J. Nor can these words mean that the Minister is free to act in an autocratic and arbitrary fashion, since this would not only be consistent with the rule of law, but it would be at odds with the guarantee of democratic government contained in Article 5 of the Constitution.
18. Yet if the Minister could act entirely upon his own personal conceptions of what was entailed by good character on the basis that the Oireachtas had thereby vested him with an “absolute” discretion, the way would be opened for the imposition of private morality and arbitrary choice in the sphere of public law. In fairness, counsel for the Minister, Ms. Stack, fairly disclaimed any such contention, although she did argue that the words gave the maximum possible degree of leeway to the Minister in making an assessment of this kind.
19. In this regard it should also be recalled that s. 15 requires that the Minister must be “satisfied” as to an applicant’s good character prior to the grant of a certificate of naturalisation. Phrases such as “if the Minister is of opinion” or “if the Minister is satisfied” of certain matters which predicate the exercise of statutory powers are, of course, a familiar feature of the statute book. It has been clear since the Supreme Court’s decision in The State (Lynch) v. Cooney  I.R. 337 (if not, indeed, earlier) that the existence of such subjectively worded statutory formulae notwithstanding, the Minister’s assessment is nonetheless amenable to judicial review. Thus, the Minister’s conclusion must, in the words of the judgment of O’Higgins C.J. delivering the judgment of the Court on the constitutional issue, be one “which is bona fide held and factually sustainable and not unreasonable”:  I.R. 337 at 361. This point was further amplified by Henchy J. in his concurring judgment on the non-constitutional issues when he said ( I.R. 337 at 380-381):
21. Nevertheless, provided that the Minister’s application of these principles to the facts of the case is reasonable, then his or her ultimate decision is probably unimpeachable in law. Returning now to the facts of the present case, the Minister would obviously be entitled to conclude that a person who was knowingly in possession of either forged notes or counterfeited items was not a person of “good character” for this purpose, since this shows a level of calculated dishonesty which is plainly at odds with ordinary standards of civic morality. The real question, however, is whether the Minister was entitled, without more, to reach this conclusion on the facts of the present case.
22. It is true that the applicant has never been charged, much less convicted, arising from these incidents. That, in itself, cannot be decisive. It would be easy to think of instances where an applicant came to adverse Garda attention by reason, for example, of the possession of contraband in circumstances where a prosecution was never initiated. It could not be suggested that in such circumstances the Minister’s hands were tied even though the applicant in question had never even been prosecuted. Assuming always that fair procedures have been complied with, the Minister would be entitled to refuse the application if it could reasonably be concluded that the applicant was involved in serious criminal wrong-doing, even though he had never been convicted or even charged with such an offence.
23. But it is equally the case that an applicant cannot be disqualified for s. 15 purposes, merely because he or she has come to adverse Garda attention. The Gardaí may, for example, be quite mistaken in their belief that the applicant had engaged in wrongdoing. In the present case, it means, for example, that the applicant may have a perfectly good explanation for both the forged notes and the counterfeiting incidents which shows that no moral blame attaches to him.
24. In the ordinary way, therefore, the Minister would be obliged to put these matters to the applicant as a matter of fair procedures before reaching an adverse decision: see, e.g., the comments of Cooke J. in Jiad. Of course, it may be said - and this is the very essence of the Minister’s case - that the applicant must already have known from the terms of the information leaflet that the Minister would commission a Garda report prior to making any decision on the application. If the Gardaí were asked to report, then these incidents would inevitably have come to the Minister’s attention and that in such circumstances he cannot reasonably complain if the Minister relied on such information.
25. I am not unsympathetic to this argument. There is much to be said for the contention that it behoved an applicant to make advance disclosure of these incidents in making his application and to furnish a full explanation for them. Nevertheless, even if the applicant was put on notice by the information leaflet that a Garda report would be commissioned, the overall tenor of the statement was that this report would be confined to questions of a “criminal record or ongoing proceedings”. One cannot read the leaflet as unambiguously requiring an applicant to make advance disclosure of incidents requiring Garda attention, but which did not proceed further.
26. In these particular circumstances, objectively speaking, the applicant cannot be faulted on this account either for failing to deal in his application with the two incidents in question. It followed, therefore, that if the Minister wished to reach a conclusion adverse to the applicant, he was obliged as a matter of fair procedures to put matters not involving a criminal record or pending civil or criminal proceedings to the applicant for his comments.
28. In these circumstances, I further propose to remit the matter to the Minister for further consideration pursuant to the terms of O. 84, r. 26(4). I will further direct that the Minister should now write to the applicant inviting him to make submissions in writing in response to the Garda report. Given the delays which unfortunately have attended this application thus far - there was an interval of four years between the date of the application and the ultimate decision - it is to be expected that the Minister would take a fresh decision with all appropriate deliberation as quickly as possible once these further submissions have been received.