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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.P -v- Minister for Justice and Equality [2014] IEHC 17 (17 January 2014)
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Cite as: [2014] IEHC 17
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Judgment Title: A.P -v- Minister for Justice and Equality Neutral Citation: [2014] IEHC 17 High Court Record Number: 2013 347 JR Date of Delivery: 17/01/2014 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 17 THE HIGH COURT JUDICIAL REVIEW [2013 No. 347 J.R.] BETWEEN A. P. APPLICANT AND
THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT JUDGMENT of Mr. Justice McDermott delivered on 17th day of January, 2014 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:-
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. 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. 1) [1992] 11.R. 277, Finlay C.J. summarised the relevant principles initially elaborated in Murphy v. Dublin Corporation [1972] I.R. 215 as follows:-
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." 5. This Court granted leave to the applicant to apply for judicial review on 13th 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 30th 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. 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 for the refusal of his application for naturalisation pursuant to the Freedom of information Act, and this was refused by the respondent under the Act but, nevertheless, the Supreme Court held that there remained an obligation on the respondent, as a matter of fairness, to disclose his reason for refusing naturalisation. 3. ...the respondent is obliged to comply with the Rules o fthe (Convention Relating to the Status of Refugees) the Geneva Convention, including Article 34, as a matter of European Union law and should "as far as possible facilitate" the naturalisation of the applicant, and/or the applicant has a legitimate expectation that the respondent will comply with Article 34. In light of the number of applications made by the applicant for naturalisation, it is incumbent of the respondent to state why he has refused the applicant's most recent application. 4. The acquisition of Irish citizenship also constitutes the acquisition of European Union citizenship such that it is a matter covered by European Union law. A failure to provide the reason for the refusal of naturalisation is in breach of the Charter of Fundamental Rights, including Article 41 thereof, and the principles of European Union law."
2. It is denied that this has breached the applicant's rights to fair procedures and/or to constitutional justice and/or to seek an effective judicial remedy. It is denied that it prohibits the applicant from examining whether the refusal to grant the applicant a certificate of naturalisation is lawful or that it impairs him from bringing an effective application in the future. Without prejudice to the foregoing, the respondent's bona fide interest in the protection of the State's legitimate interests justifies the withholding of the reasons for the decision, notwithstanding any alleged prejudice to the applicant. 3. It is denied that the respondent acted unlawfully in relying on the Freedom of Information Act 1997, as amended. The reference to the various sections of the Freedom of Information Act enclosed with the letter of refusal dated 30th April, 2013, advised the applicant that there was a valid justification for refusing to give reasons. That justification was valid, lawful and rational. The respondent, of course, relies on other grounds including the contention that the reliance upon the Charter of Fundamental Rights by the applicant is misconceived."
Please note that there is no provision under the Irish Nationality and Citizenship Act 1956, as amended, for appeal of a decision in respect of an application for a certificate of naturalisation. Please see attached extract from the sections of the Freedom of Information Act 1997, as amended, that are relevant to the Minister's decision in your case."
4. The recommendation that was made to the Minister comprised two principal elements. Firstly, it was recommended that the application be refused. Secondly, it was recommended that the Minister not disclose the reason for his decision having regard to his obligations under the provisions of ss. 18, 24, 25 and 26 of the Freedom of Information Act, 1997 as amended. The Minister agreed with the recommendation on 1ih July, 2013, and the decision was duly communicated to the applicant by means of the letter dated 20th April, 2013... 5. Accordingly, it was and remains the view of the Minister, that to disclose the reason to the applicant, or indeed the specific nature of the reason, for the refusal of the certificate of naturalisation would be inimical to the interests of the State. With due regard to this consideration and constrained thereby, I shall set out the underlying reasons for this position." 10. It is also claimed that in carrying out these investigations, the Minister receives information on a strictly confidential basis from external sources which it would not otherwise be able to obtain. The respondent claims to be dependent upon the goodwill of the external agencies currently providing such information. In order to ensure the continuity of such information, the Minister has decided that confidentiality must be respected and that such information will not be disclosed to an applicant whose application may be refused as a result. In addition, information obtained in the course of the examination of an application may relate to issues of national importance including national security, which would render it inimical to the State's own interest to disclose it to a disappointed applicant. If this information were not available in the future from confidential external sources, it is claimed that the State would be left with the choice of either rejecting large numbers of applicants as a matter of policy whose character could not be vouched, but currently can be, and are granted certificates of naturalisation or to grant certificates of naturalisation to persons who would include amongst their number some "who would harm the interests of the State or of friendly States" with the risk that this would entail to the reputation of an Irish passport holder. 11. In that context, it is also claimed that disclosure of even the nature of the reason for refusal of a certificate may give rise to a wider risk beyond the specific application in question. It is claimed that to give a general reason for refusal based on national security may in any given case be to confirm to a person who is such a threat, that the State's or friendly States' intelligence services are aware of his or her activities. In cases where the confidential grounds for refusing the certificate may not relate to national security or be provided by an external source, it is claimed that the disclosure of either the nature or source of information would in time allow applicants who are not given such information to deduce correctly that they are the subject of intelligence information relating to national or international security. 12. In the wake of the Mallak decision, the respondent accepts that he is now required to give a reason or to provide a justification for not giving the reason for the refusal of the application. It is also claimed that in line with that new policy, the applicant in this case was informed that the Minister had decided not to disclose the reason for the decision having considered his obligations under the provisions contained in the extract of the Freedom of Information Act 1997, attached to the letter. It was claimed that to give any more specific justification would, therefore, in the view of the Minister, be in conflict with the interests of the State. The Freedom of Information Act 1997 14. Section 24 provides that a head may refuse to grant a request in relation to a record if in his/her opinion, access to it could reasonably be expected to affect adversely:-
(b) the defence of the State, (c) the international relations of the State, or (d) matters relating to Northern Ireland."
(ii) that relates to- (I) the tactics, strategy or operations of the Defence Forces in or outside the State, or (II) the detection, prevention, or suppression of activities calculated or tending to undermine the public order or the authority of the State, (b) contains a communication between a Minister of the Government and a diplomatic mission or consular post in the State or a communication between the Government or a person acting on behalf of the Government and another government or a person acting on behalf of another government, (c) contains a communication between a Minister of the Government and a diplomatic mission or consular post of the State, (d) contains information communicated in confidence to any person in or outside the State from any person in or outside the State and relating to a matter referred to in subsection (1) or to the protection of human rights and expressed by the latter person to be confidential or to be communicated in confidence, (e) contains information communicated in confidence from, to or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union or relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body, or (f) is a record of an organisation..." 17. The applicant was informed for the first time that the refusal to disclose the reasons for the refusal of his application for a certificate of naturalisation was on the grounds that such disclosure would be inimical to the security of the State in para. 1 of the statement of opposition. The reference to the extracts of the 1997 Act is wide ranging and non-specific. The rigorous checks carried out by the respondent are clearly checks into character and the conduct of applicants for naturalisation, which may include obtaining information from both domestic and foreign agencies including security agencies. This was acknowledged in para. 2 of the respondent's written submissions which states that:-
18. Mr. Kelly verifies in his first affidavit that to disclose to the applicant the reasons or the specific nature of the reasons would be inimical to the interests of the State. I take that to be an umbrella term for all of the matters arising under the sections contained in the extract. Thus, even to describe the reason and failure to disclose as being related to the security of the State or the defence of the State or international relations or that it was based on confidential information from a reliable source would compromise the interests of the State. Indeed that is the basis for the claim of privilege as set out in the notice of the respondent dated 15th November, 2013, under O. 38, r. 17 and is said to be in accordance with the decision of the Supreme Court in Mallak and in particular with para. 77 which states:-
20. It is submitted by the respondent that disclosure of the documents is not relevant to the determination of the issue in this case, namely that the refusal of the respondent to disclose his reason for refusing the applicant's application is unlawful because, inter alia, it prohibits the applicant from examining whether the refusal to grant him a certificate of naturalisation is lawful and impairs him in bringing an effective application in the future. However, it is clear that the applicant challenges both the refusal to give reasons and the decision to refuse the grant of naturalisation to the applicant. The documents which the court has seen are clearly relevant to a consideration of the refusal and the applicant's ability to challenge it. It is difficult to see how the applicant can be expected to address in a future application the issues raised against him if he simply has no knowledge, even in general terms, of what they are. He is placed in a very difficult position which is not simply frustrating for him as acknowledged by the respondent. He is placed at a complete disadvantage in attempting to formulate a challenge to the decision or to make a new application for a certificate at a later date. He has simply no understanding on the basis of the letter received of what the problem is or may be. 21. It is important to recognise also the state's legitimate interest in this area. As stated by Walsh J. in Murphy v. Dublin Corporation [1972] I.R. 215 at pp. 233-4:-
23. The use of confidential information or intelligence reports obtained from informants or otherwise, has been an accepted tool in the administration of justice in this jurisdiction for many years. It is widely used in the investigation and prosecution of organised crime and counter terrorism. Its use in the criminal law is subject to a degree of scrutiny consistent with a fair trial. There are many instances in which An Garda Síochána are empowered, having formed a requisite opinion, to obtain or issue a warrant to search homes or business premises or to effect an arrest on the basis of an opinion based entirely or partly upon confidential information received from a usually reliable source. The reasons for the formation of the requisite opinion are often explored in open court during the course of a trial and may be the subject of challenge and cross examination, though limited by the exigencies of the protection of confidentiality or the source itself whether by way of a claim of public interest or informant privilege. An Garda Síochána operate procedures whereby the quality of the sources of information may be reviewed in order to maintain the integrity of the information gathering process and to ensure its reliability as far as practicable. This is a feature common to police forces throughout the world. The sharing of information between police forces and other agencies necessarily requires confidence by the donor that the recipient agency will maintain an appropriate degree of confidentiality and protection in respect of the information received and its source. Even this limited capacity, available in criminal trials, to challenge the basis of an opinion formed relying upon confidential information, is unavailable to the applicant in this case: however, its availability in criminal trials demonstrates that it is possible to formulate and scrutinise a reason for an opinion whilst protecting the confidential source from disclosure. The Documents Document A Document B 27. I would allow inspection of this document with the following redactions. I direct that paragraph 1 should be redacted. The second paragraph should be redacted save for the first sentence. I would allow the inspection of the third, fourth, fifth and sixth paragraphs in the document. I am satisfied that limited inspection of this document does not in any way compromise the confidentiality of any information obtained by the respondent or the public interest. However, I am satisfied that the disclosure or inspection of the redacted portion would be inimical to the interests of the state. Document C 29. In making this ruling the court is, of course, not determining the question as to whether the applicant is entitled to succeed on the substantive claim in respect of which leave to apply for judicial review was granted.
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