Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59; (Supreme Court, 6 December 2012, Fennelly J delivering judgment for the Court)

On 6 December 2012, the Supreme Court reversed the decision of Cooke J in the High Court and quashed a decision of the Minister for Justice refusing to grant the Applicant a certificate of naturalisation, due to the failure of the Respondent Minister to give reasons for his decision. The decision of the Supreme Court is a ground‐breaking one in circumstances where numerous previous decisions of the High Court on the issue had found that the Minister for Justice was not obliged to provide reasons to explain decisions in relation to the grant or refusal of certificates of naturalisation, in spite of the fact that the only successful challenges to such decisions on judicial review had occurred where reasons had been provided (Abuissa v. Minister for Justice [2011] 1 IR 123; Mallak v. Minister for Justice [2011] IEHC 306; Pok Sun Shum v. Ireland [1986] ILRM 593). Furthermore, while the Supreme Court did not go so far as to state that there exists a general duty on administrative decision makers to disclose the reasons for decisions affecting the rights and obligations of individuals, in delivering judgment for the Court, Fennelly J made a number of compelling statements that provide strong endorsement for the existence of such a duty in virtually all cases.

The Applicant in this case was a Syrian national, who had arrived in Ireland with his wife in 2002. Both had applied for, and were granted, refugee status in November 2002 and had subsequently applied for certificates of naturalisation, with a view to obtaining citizenship in Ireland. In 2008, the Applicant's wife was granted a certificate of naturalisation, however, his application was refused without reason.

The Applicant initially sought to be provided with reasons for the decision pursuant to the statutory entitlement provided in Section 18 of the Freedom of Information Acts 1997 and 2003. However, the Minister refused to provide reasons pursuant to the exemption provided at Section 18(2)(b) of those Acts. This refusal was upheld by the Office of the Information Commissioner on appeal; although the Information Commissioner acknowledged that the circumstances were such that the Applicant was left none the wiser as to why his naturalisation request and subsequent request for reasons were refused.

Rather than appeal the decision of the Information Commissioner to the High Court on a point of law, the Applicant sought to challenge the decision of the Minister for Justice by way of Judicial Review on the grounds that he did not know the reasons why his application had been refused. He argued that it was unfair and unreasonable to deny him those reasons and that the failure to provide reasons hindered any future application for naturalisation he might make.1

The Supreme Court agreed. In delivering judgment for the Court, Fennelly J held that the failure to give reasons had deprived the Applicant of the opportunity to either effectively challenge the decision or reapply for a certificate of naturalisation. In reaching this decision, Fennelly J further held that the Minister for Justice was not exempt from the rules of natural and constitutional justice simply because 1 Further grounds of appeal, challenging the relevant provisions of the Irish Nationality and Citizenship Act, 1956 as both unconstitutional and in breach of Article 41 of the Charter of Fundamental Rights of the European Union, insofar as they permitted the making of a decision without giving reasons, were not considered by the Supreme Court in reaching its decision. the power in question was one exercised in his "absolute discretion." In addition, he stated that while the Applicant was not entitled to Irish citizenship as a matter of legal right, by virtue of his birth in Ireland or Irish parentage, the mere fact that his application for a certificate of naturalisation sought the conferral of a privilege did not mean that he enjoyed inferior legal protection when pursuing his application.

Fennelly J went on to conduct a review of the existing case law on the duty to give reasons and, whilst acknowledging that the previous case law presented a persistent view that there is no general obligation at common law to give reasons for administrative decisions, he also observed that the courts have recognised a significant range of circumstances in which a failure or refusal by a decision‐maker to explain or give reasons for a decision may amount to a ground for quashing it. As a result, at paragraph 66 of his decision, he expressed the following view:

In the present state of evolution of our law, it is not easy to conceive of a decision‐maker being dispensed from giving an explanation either of the decision or of the decision‐making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision‐maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.

He provided an even stronger endorsement for the duty to give reasons at paragraph 74 of his decision, where he observed:

... The developing jurisprudence of our own courts provides compelling evidence that, at this point, it must be unusual for a decision maker to be permitted to refuse to give reasons. The reason is obvious. In the absence of any reasons, it is simply not possible for the applicant to make a judgment as to whether he has a ground for applying for a judicial review of the substance of the decision and, for the same reason, for the court to exercise its power. At the very least, the decision maker must be able to justify the refusal. No attempt has been made to do so in the present case and I believe it would be wrong to speculate about cases in which the courts might be persuaded to accept such justification.

Such statements provide a powerful indication that providing reasons for administrative decisions which affect the rights and obligations of individuals will be considered an essential aspect of the rules of natural and constitutional justice and principles of fair procedures, where they are necessary to enable the effective exercise of the remedy of judicial review. However, as the Court expressly declined to comment on the factors relevant to any consideration of the adequacy of reasons provided, the extent of the reasons required in such cases remains an open question.

Footnote

1. Further grounds of appeal, challenging the relevant provisions of the Irish Nationality and Citizenship Act, 1956 as both unconstitutional and in breach of Article 41 of the Charter of Fundamental Rights of the European Union, insofar as they permitted the making of a decision without giving reasons, were not considered by the Supreme Court in reaching its decision.

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