Judgment Title: G.K.N. -v- The Minister for Justice and Equality
Neutral Citation:  IEHC 478
High Court Record Number: 2013 705 JR
Date of Delivery: 22/10/2014
Court: High Court
Composition of Court:
Judgment by: Mac Eochaidh J.
Status of Judgment: Approved
Neutral Citation:  IEHC 478
THE HIGH COURT
[2013 No. 705 J.R.]
IN THE MATTER OF THE IRISH NATIONALITY AND CITIZENSHIP ACT 1956 (AS AMENDED) AND IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW
THE MINISTER FOR JUSTICE AND EQUALITY
JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 22nd day of October 2014
1. This is an application for judicial review of the respondent's decision of 2nd July 2013, refusing the applicant's application for naturalisation.
2. The applicant was declared to be a refugee on 27th November 2002. He is married to an Irish citizen and is the father of two Irish citizen children.
3. Three previous applications for naturalisation were made in 2003, 2008 and 2009, which were refused. The present application was made on 1st September 2010.
The letter submitting the application for naturalisation stated:
5. On 14th August 2012, the applicant's solicitors asked to be updated in relation to the application. On 12th December 2012, the respondent's Immigration Service (INIS) wrote to the applicant's solicitor, saying:
With reference to the incident recorded by the gardaí on the above date, please; provide further information on same."
7. The applicant's (new) solicitors replied to the respondent on 9th January 2013, enclosing a receipt from Galway District Court confirming payment of a fine of €300, and saying:
The incident was reported to the gardaí and our client was subsequently arrested and convicted of hit and run and leaving the scene of the accident. He was fined €300 in respect of both of these offences which he duly paid and there was €700 compensation to effect repairs to the damaged vehicle which was also paid, and all these are demonstrated by the receipt from the District Court."
A copy of the submission that was prepared for the Minister, with his decision annotated thereon, is enclosed for your information."
This applicant has come to the adverse attention of the gardaí, see report attached. The resulting fine has been paid. He has two Irish-born children and is a self-employed taxi driver. Given the serious nature of the offence, I would not recommend this applicant for a Certificate of Naturalisation."
10. The garda report attached to the submission is also very short. It records that on 23rd January 2007, at Galway Circuit Court, an offence of "Hit and Run (Failing To Stop)" resulted in a fine of €300 and "Disqualification Order Consequential 2Mths" and it records "Hit and Run (Failing To Remain At Scene)" resulting in "Fine €300, Compensation €700".
12. Section 16 of the Act, as amended, provides, that the Minister, in his absolute discretion, grant a Certificate for Naturalisation, notwithstanding that the conditions for naturalisation (established by s. 15) are not met "where the applicant is a person who has refugee status".
14. The Court accepts that all of this information was sent to the respondent and that the applicant has established that in all probability the respondent did not examine all of the documentation and correspondence which comprised the application for naturalisation, but instead, relied, and was so entitled, on the very short summary of the application and recommendation, signed by three of his officials on the 19th of April 2013. That summary, and its attachment, in my view, presents a picture of the applicant which is in stark contrast to the picture that emerges from a consideration of the full application file comprising completed application form, correspondence, including answers to requests for further information about the incident which gave rise to the conviction, as well as various documents. The only information which the Minister appears to have had was the short summary most of which is quoted above and the Garda extract indicating that the applicant had been involved in a hit and run incident, for which he was convicted, and a recommendation which refers to "the serious nature of the offence".
15. The offence in question arises under s. 106 of the Road Traffic Act 1961, which criminalises failure to stop and failure to remain at the scene of an incident whereby injury is caused to a person or to property. In my view, the documents before the Minister did not indicate that the injury in this instance was not to a person, but to a vehicle. Neither did the document indicate that the injury was of a very minor nature involving only the grazing of the vehicle in question. In addition, the recommendation contained an ambiguous statement which asserted "the serious nature of the offence". It is unclear whether this statement was referring to the serious nature of the general offence created by s. 106, or the serious nature of the offence committed by the applicant for which he was convicted. Either interpretation creates problems for the respondent. If the nature of an offence under s. 106 is of itself sufficiently serious to warrant a refusal of naturalisation, this would appear to be too broad an analysis upon which to build a negative naturalisation recommendation. I say this because offences under s. 106 of failing to stop and failing to remain at a scene of an incident can involve extremely minor occurrences or events involving loss of life. Thus, the mere fact that an offence under s. 106 is recorded against an applicant could not, of itself, rationally ground a negative naturalisation recommendation. On the other hand, if the statement by the author of the advice to the Minister was suggesting that the events on the night of January 2007 involving the grazing of a third party vehicle was, of its nature, sufficiently serious to warrant refusal of naturalisation, then, in my view, such an analysis would have to be deemed to be irrational. The connection between character and criminality can only be established where the Minister has all relevant information in connection with the crime. A person who double parks his vehicle in front of a maternity hospital to rush a woman in labour inside commits a criminal offence. However, no one could say that any indication as to character can be inferred from the criminal act.
16. I agree with the comments of Lang J. in Hiri v Secretary of State for the Home Department  ETHIC 256
36. The Defendant is entitled to adopt a policy on the way in which criminal convictions will normally be considered by her caseworkers, but it should not be applied mechanistically and inflexibly. There has to be a comprehensive assessment of each applicant's character, as an individual, which involves an exercise of judgment, not just ticking boxes on a form."
18. I note that the author of the short submission to the Minister selects certain information only from the overall application for the attention of the Minister. The author informs the Minister that the fine has been paid, that the applicant has two Irish-born children and that he is a self-employed taxi driver. In my view, it was incumbent upon the author of the report to draw the attention of the Minister to the circumstances surrounding the incident on the night in question, in particular, because the respondent's agent had specifically sought information about the conviction of the applicant of an offence under s. 106 of the Road Traffic Act. Having sought that information, which, in my view, transpired to be exculpatory in nature, it ought to have been brought to the Minister's attention. In its absence, the Minister merely had documents saying that an offence of a serious nature had been committed and that this was a 'hit and run'. It was a denial of the applicant's constitutional rights not to place all of the relevant information before the Minister. I am satisfied that the decision should be quashed on this ground.
19. Other matters have been argued by the applicant. In particular, it has been said that the Minister's decision is irrational because a minor event involving the grazing of one vehicle against another, including the departure from the scene of the incident before the arrival of gardaí, could not be sufficient to negate the good character that the State has required to be established by an applicant. Given that I have decided that the minor nature of the: events had not been drawn to the Minister's attention, it would be meaningless to determine the argument as to rationality which assumes that the Minister was aware that the incident in question was allegedly very minor in nature.
20. Finally, the applicant seeks to argue that the Minister ought to have considered exercising his discretion under s. 16 of the 1956 Act, as amended, which permits the Minister to grant naturalisation to a declared refugee, even if he is found not to have met one of the requirements of s. 15 - in this case, not to have met the requirements as to good character. In my view, the Court is not required to determine this argument in circumstances where it has found that the Minister's decision that the applicant is not of good character is unlawful. Had a lawful decision as to character been made, a relevant argument would then be before the Court as to whether, in those circumstances, the Minister must or may proceed to consider exercising discretion s. 16. That is an argument for a case with more appropriate facts.
21. The respondent has sought to meet the applicant's first complaint in these proceedings by asserting that many of the matters as to good character sought to be relied on have been introduced after the application process. In addition, the respondent indicates that the Minister did have regard to all of the matters which were comprised in the application, including the correspondence. There are no averments to support this submission, and on the basis of the evidence before the Court, I find, as indicated above, that on the balance of probability, the Minister's decision is based only upon two documents comprising the submission made to him by his official and the accompanying Garda extract. With regard to the failure of the Minister to consider matters of good character introduced after the application process, if this is the crux of the respondent's case, it also fails. The applicant has demonstrated that very important information about the criminal conviction was communicated to the officials before the Minister took the decision but this was not communicated to the Minister. This is enough to undermine the decision. Clearly the Minister cannot be faulted for not considerong matters raised ex post facto
22. The respondent has relied on the decision of Cooke J. in Tabi v. The Minister for Justice, Equality and Law Reform (16 April 2010)  IEHC 109, to the effect that, in naturalisation application, the Minister enjoys broad discretion and is entitled to use the fact of four road traffic offences resulting in a fine as the basis of a failure of a naturalisation applicant to establish good character. The learned judge said: