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Cite as:  3 IR 297,  1 ILRM 73,  IESC 59
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Judgment Title: Mallak v Minister for Justice Equality & Law Reform
Neutral Citation:  IESC 59
Supreme Court Record Number: 339/11
High Court Record Number: 2009 492 JR
Date of Delivery: 06/12/2012
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., Fennelly J., O'Donnell J., McKechnie J.
Judgment by: Fennelly J.
Status of Judgment: Approved
Outcome: Allow And Vary
THE SUPREME COURT
Appeal No. 339/2011
GHANDI NAWAF MALLAK
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Judgment delivered the 6th day of December 2012 by Mr Justice Fennelly
1. The phenomenon that is the modern law of judicial review, though rooted in history, has witnessed extraordinary development over the past thirty years. At its heart it insists that, to adapt the language of this Court in The State (Lynch) v. Cooney  I.R. 337, any administrative decision, in that case an opinion of a Minister which enabled him to make an order prohibiting broadcasts, must be “bona fide held and factually sustainable and not unreasonable.” The underlying principles of judicial review are universal. Courts of the common law have developed and expanded the historic rules of natural justice, in more recent imes with inspiration from international human-rights instruments such as the European Convention on Human Rights and, in this jurisdiction, from the Constitution. The Court of Justice of the European Union speaks of a “complete system of legal remedies.”( Case 294/83 Parti écologiste “Les Verts” v European Parliament  ECR 1339, paragraph 23). The rules are composed of a number of inter-related features, the underlying fundamental presumption being that those to whom discretionary powers are entrusted will exercise them fairly insofar as they may affect individuals. Where fairness can be shown to be lacking, the law provides a remedy. The right of access to the courts is an indispensable cornerstone of a State governed by the rule of law.
2. The particular issue for decision on this appeal is the extent to which decision-makers are obliged to disclose the reasons for which they are made. This question is, of its nature, closely related to other features of the rules of natural justice compendiously covered by the broad principle of audi alteram partem, which may include the giving of prior notice of impending decisions, of the matters which the decision-maker will take into account and, in appropriate cases, the disclosure of information and even, in some cases, the holding of a hearing.
3. While our courts have extensively considered the adequacy of reasons when they have actually been given, there has been no principled consideration of the question whether a general obligation to furnish reasons exists at all or, if it does not, in what cases reasons should be given and why. There is a persistent view, as evidenced by the High Court judgment in the present case, that there is no general obligation at common law to give reasons for administrative decisions. There must be a close relationship between the process of giving prior notice and giving reasons after the event.
4. The issue presents itself in a particularly clear-cut way in the present appeal. The appellant is a Syrian national. Having applied successfully for asylum and being declared to be a refugee by the respondent Minister, he applied for a certificate of naturalization, but was refused. The Minister relied on his absolute discretion and declined to provide any reason for his decision. He insisted and continues to insist that he is not obliged to explain his decision.
5. The appellant is a national of Syria. He arrived in Ireland in the company of his wife in 2002. They both applied for and were granted refugee status on 22nd November 2002, by formal declarations of the Minister. That declaration informed the appellant that he had, inter alia, the following rights:
• the same rights of travel in order to or from the State as those to which Irish citizens are entitled;
• the right to have access to the courts in the like manner and to the like extent in all respects as an Irish citizen.
7. He made at least one application for naturalisation prior to the one at issue in these proceedings. He says that he was refused on the ground of an insufficient period of residency in the State. It should also be noted that the Minister informed the appellant early on that applications were placed in chronological order and that it would take a year to a year and half before his own application would be examined.
8. On the 9th December 2005, the appellant made a new application to the respondent, (hereinafter “the Minister”) for a certificate of naturalisation with a view to obtaining citizenship pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956, as amended (hereinafter the “Act of 1956”). In September 2008, he wrote complaining about the delay which had then elapsed of more than two and a half years in dealing with his application. He received a reply stating that no decision had yet been made. The Minister notified the appellant in a letter dated 20th November 2008 that he was refusing his application. The appellant’s wife, however, was granted a certificate of naturalisation in October 2008 and is now an Irish Citizen.
9. The Minister’s letter of 20th November 2008 stated:
In reaching this decision, the Minister has exercised his absolute discretion, as provided for by the Irish Nationality and Citizenship Acts 1956 and 1986 as amended. There is no appeals process provided under this legislation. However, you should be aware that you may reapply for the grant of a certificate of naturalisation at any time. Having said this, any further application will be considered taking into account all statutory and administrative conditions applicable at the time of the application.”
11. It is fair to add, however, that, by letter dated 11th January 2010, the Office of the Information Commissioner acknowledged that the circumstances were such that the appellant was left none the wiser as to why his naturalisation request and subsequent request for reasons were refused. As was pointed out, it would have been open to the appellant to pursue the matter pursuant to the Acts by way of appeal on a point of law to the High Court. The present appeal is not concerned with the operation of procedures pursuant to those Acts.
12. The appellant pursued, in parallel, his desire to obtain access to material adverse to him which he believed was held in the Department of Justice, Equality and Law Reform by means of requests under the Data Protection Acts. Following further correspondence, the Department provided a schedule of records which included a "Garda Report" and a "Garda Request Form." The appellant maintains that these documents had never previously been disclosed to him and that he had never had an opportunity to meet any adverse findings contained in them. He speculates that these "must be the documents which were deemed to be exempt records under the Freedom of Information Act."
13. By order dated 11th May 2009 the applicant was granted leave to apply for judicial review by the High Court (by Peart J.) of the decision communicated by the Minister on 20th November 2008. The grounds for the application were that the appellant did not know the reasons why his application for naturalisation had been refused. The appellant claimed that he had a legitimate expectation that he would be granted naturalisation in a manner consistent with the Minister’s obligations under the Geneva Convention relating to the Status of Refugees and that it was unfair and unreasonable to deny him those reasons. Furthermore, the failure to provide reasons hindered any future applications that he might make for naturalisation.
14. While the appellant’s application for judicial review was pending, Clark J. on 1st July 2010 in Abuissa v Minister for Justice, Equality and Law Reform  1 I.R.123 held that the discretion of the Minister in considering applications for certificates of naturalisation is absolute and rejected a submission that the Minister is obliged to furnish reasons. In the light of this decision, the appellant applied on motion for leave from the High Court to amend his grounds of judicial review on 9th December 2010. The effect of the amendments was to add grounds which may be summarised as follows:
(ii) The said provisions have the effect of conferring power on the Minister to deprive the applicant of access to citizenship of the European Union without any obligation to state reasons and, for that reason, the provisions infringe Article 41(2), paragraph 3, of the Charter of Fundamental Rights of the European Union.
15. Section 3(1) of the Refugee Act 1996 provides that, subject to section 17(2), a refugee in relation to whom a declaration is in force shall be entitled to the same rights and privileges as those conferred by law on persons generally who are not Irish citizens. Section 3(2) sets out a list of rights for a refugee in relation to whom a declaration is in force. Section 17(2) confers power on the Minister, if he “considers that in the interest of national security or public policy it is necessary to do so” to restrict or limit the rights of a person declared to be a refugee. The Minister acknowledges that he has not exercised this power in the case of the appellant.
16. The Geneva Convention of 1951 relating to the Status of Refugees is scheduled to the Refugee Act 1996. The long title to the Act declares that its intention is to give effect to the Convention. Article 34 of the Convention provides that:
18. Section 15 of the Act, as substituted in full by s. 4 of the Irish Nationality and Citizenship Act, 1986 and amended by s. 8(a) and (b) of the Irish Nationality and Citizenship Act 2004 and s. 33(b)(i) and (ii) of the Civil Law (Miscellaneous Provisions) Act 2011 provides:
(a) (i) is of full age, or
(ii) is a minor born in the State;
(b) is of good character;
(c) has had a period of one year's continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, has had a total residence in the State amounting to four years;
(d) intends in good faith to continue to reside in the State after naturalisation; and
(e) has, before a judge of the District Court in open court, in a citizenship ceremony or in such manner as the Minister, for special reasons, allows—
(i) made a declaration, in the prescribed manner, of fidelity to the nation and loyalty to the State, and
(ii) undertaken to faithfully observe the laws of the State and to respect its democratic values.
(2) The conditions specified in paragraphs (a) to (e) of subsection (1) are referred to in this Act as conditions for naturalisation.
(3) In this section ‘applicant’ means, in relation to an application for a certificate of naturalisation by a minor, the parent or guardian of, or person who is in loco parentis to, the minor.
(4) In this section and section 15A, ‘citizenship ceremony’ means a ceremony, held before a judge, or a retired judge, of the District Court, Circuit Court, High Court or Supreme Court, or such other person as may be designated for that purpose by the Minister, at a place and in a form approved by the Minister, at which the applicant has made the declaration and undertaking referred to in subsection (1)(e) or section 15A(1)(h)”
20. Section 15A, inserted by s. 5 of the Irish Nationality and Citizenship Act, 2001, provides that “the Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse or civil partner of an Irish citizen…” if he or she is satisfied that certain conditions have been met. It would appear to have been possible for the appellant to make such an application once his wife had been granted a certificate of naturalisation. However, that is not a matter now before the Court.
21. Since the appellant also invoked the machinery of the Freedom of Information Acts, it is material to note that s. 18(1) of the Freedom of Information Act 1997 provides:
(a) of the reasons for the act, and
(b) of any findings on any material issues of fact made for the purposes of the act.
22. Cooke J. heard the appellant’s application for judicial review. Based on the written and oral submissions of the parties, the learned judge identified the issues before the court in terms which can be summarised as follows:
(b) in the event that the first question is answered in the negative, whether the relevant provisions of the Act of 1956, in particular s. 15, are incompatible with the Constitution;
(c) whether, in considering an application for a certificate of naturalisation and, thus, access to citizenship of the European Union the Minister is obliged to take into account any provisions or principles of European Union law.
24. Firstly, whether the Minister would decide to grant or refuse a certificate of naturalisation was one which was, in the words of the section, within his or her absolute discretion. This meant, the learned judge held, “quite literally that the Minister does not need to have or to give any reason for refusing an application for a certificate.” Thus, he continued, if the Minister “does have a reason he is not obliged to divulge it to a disappointed applicant.” Consequently, “it would clearly fly in the face of the unambiguous intention of the Oireachtas as thus expressed for this Court to attempt to hold otherwise.” He pointed out that “under the Act of 1956, no obligation is imposed on the Minister to give reasons for a refusal decision.” In his view, “as the Act gives no right of appeal against the exercise of the absolute discretion when a refusal decision is made, it is not possible to imply any entitlement to a statement of reasons.”
25. In support of these propositions, the learned judge cited extensively from the decision of Costello J. in Pok Sun Shum v. Ireland  I.L.R.M. 593, noting, in particular, the view of Costello J that: “There is no general rule of natural justice that reasons for the decisions of an administrative authority must be given.”
26. The second major consideration referred to by the learned judge, again on the authority of Pok Sun Shum v. Ireland, was that the appellant, in applying for a certificate of naturalisation and thus for access to Irish citizenship, was not seeking a decision relating to anything to which he had a right: what he sought in his application was a benefit or privilege to which he had no legal right. The learned judge reasoned as follows:
29. The appellant presented arguments under three headings:
• That the section should be interpreted in the sense that the Minister is obliged to give reasons;
• The decision of the Minister to grant or refuse a certificate of naturalisation is a decision regarding the acquisition of citizenship of the European Union to which general principles of EU law apply, in particular, Article 41 of the Charter of Fundamental Rights of the European Union, and, thus, that the Minister was obliged to give reasons. This, it is suggested, is a matter which should be referred to the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union.
31. For these reasons, it is appropriate to consider, in the first instance, the submissions of the party on the second issue. If the appellant obtains an order of certiorari of the Minister’s decision by reason of its failure to state reasons, it will be unnecessary to consider the constitutionality of the section or to refer any question for preliminary ruling to the Court of Justice.
32. The appellant complains that the Minister’s decision refusing him a certificate of naturalisation has significant adverse consequences for a person declared to be a refugee. He says that he is left effectively stateless, though he retains Syrian nationality, that he is unable to obtain a passport, and is severely restricted in free movement and travel and that he is denied full integration in the State, despite the fact that it has become, of necessity, his new home and his wife is a citizen. The appellants explained various adverse consequences for him as a declared refugee who is not able to acquire Irish nationality, and claims that, in the light of Article 34 of the Refugee Convention, naturalisation ought to be granted to him
33. Although the Minister has told him, in the letter notifying him of his decision refusing to grant him naturalisation, which he “may reapply for the grant of a certificate of naturalisation at any time,” it is impossible for him to exercise that right effectively so long as he is ignorant of the reasons for the decision. He suggests that it is quite likely that the Minister’s refusal was based on a misunderstanding of the relevant facts, which Mr. Mallak could easily have corrected, if he had been told what they were. Furthermore, where the Minister refuses to give any reason, or to indicate in any way the basis of his decision, he can in effect insulate his decision from all review.
34. The appellant draws attention to three High Court decisions in which orders were made quashing decisions refusing to grant certificates of naturalisation, namely Mishra v. Minister for Justice  1 IR 189 (Kelly J.), L.G.H. v. Minister for Justice, Equality and Law Reform, 31st January 2009 (Edwards J.), and Hussain v. Minister for Justice, Equality and Law Reform,  IEHC 171 (per Hogan J.) In each of these, he argues, the Minister had provided reasons. In the present case, there were none. The appellant contends that, on the refusal of his application for naturalisation, at least some meaningful reason should have been given, rather than no reason of any kind.
35. The appellant contests the distinction drawn by the learned trial judge between decisions involving matters of legal right and those where what a person is seeking a benefit or privilege to which he has no legal right. He cites, for example, the decision of this Court in Garvey v. Ireland  I.R. 75, where it was held that, although the office of Garda Commissioner was held at the pleasure of the Government, its holder was, nonetheless, entitled to a minimum of fair procedures. The authors of Hogan & Morgan, Administrative Law in Ireland 4th Ed. (Dublin: Round Hall, 2010) are cited for the proposition that Irish courts do not hold the view that the rules of constitutional justice did not apply to privileges.
The Minister’s submissions
36. The Minister accepts that a decision to refuse an application for a certificate of naturalisation is in principle amenable to judicial review, referring to decisions concerning the reviewability of decisions of the Director of Public Prosecutions whether or not to prosecute (Eviston v DPP  3 IR 260). He also accepts that such a decision is open to review where it is based on a failure to satisfy the conditions for naturalisation set out in paragraphs (a) to (e) of section 15(1) (A.B. v. Minister for Justice (Unreported,  IEHC 449, per Cooke J.); Hussain v. Minister for Justice ( IEHC 171 per Hogan J). He also refers to the decision of this Court in The State (Lynch) v. Cooney  I.R. 337.
37. The Minister recognises a development of the duty to give reasons as an aspect of constitutional justice, referring in particular to The State (Daly) v. Minister for Agriculture  I.R. 165 as an authority requiring reasons where the power to dismiss a civil servant could only be exercised where the appropriate authority was “satisfied” that the civil servant in question had failed to fulfil certain conditions. He argues that a dictum implying an obligation to give reasons in The State (Creedon) v. Criminal Injuries Compensation Tribunal  I.R. 51 was obiter.
38. The Minister submits, however, that, in cases of absolute discretion, there is no obligation to give reasons. Thus, s. 15 of the Act of 1956 necessarily excludes any duty to give reasons, since such a duty would negate the nature of the discretion conferred. (Pok Sun Shum v. Ireland  I.L.R.M. 593.)
39. Naturalisation is granted by the Minister as a matter of privilege and not of right, as demonstrated by: Pok Sun Shum v. Ireland; Mishra v. Minister for Justice  1 I.R. 189, Abuissa v. Minister for Justice, already cited; Jiad v. Minister for Justice  IESC 187, per Cooke J.. The Minister is exercising the executive power of the State. Therefore, it is argued, that, although this does not render the decision immune from judicial review, the High Court has a more limited supervisory jurisdiction because of the very special nature of the discretion conferred on the Minister by s. 15 of the Act of 1956. If there is evidence of capricious, arbitrary or unjust exercise of a power, the Courts will intervene by way of judicial review, but not otherwise.
Consideration of the issues
40. The Minister refused to give any reason for refusing the application for a certificate of naturalisation in this case. The reports record many judicial statements to the effect that there is no general or universal rule of natural justice requiring the makers of administrative decisions to give their reasons. On the other hand, there is no shortage of cases in which decisions have been held to be defective for failure to give them. This is the problem here.
41. Before grappling with that issue, I would like to address two points which are at the forefront of the Minister's submissions and which have recurred in several of the High Court decisions including that in the present case, as grounds for dispensing with the need to give reasons. Firstly, it is said that, where a decision is to be made in the absolute discretion of the decision-maker, it follows necessarily, meaning that it is a simple corollary of that fact, that no reason need be given for it. Secondly, it is argued that the same result flows from the fact that the grant to a non-national of a certificate of naturalisation is a matter of benefit or privilege rather than of right.
42. Where the decision being made is one which depends on the exercise of the "absolute discretion," of the decision maker, according to the first argument, it follows automatically from the very language used that no reason need be given. As it was put by the learned High Court judge in the present case, “quite literally……the Minister does not need to have or to give any reason for refusing an application for a certificate.” But there is a difference between having a reason and disclosing it.
43. It cannot be correct to say that the "absolute discretion" conferred on the Minister necessarily implies or implies at all that he is not obliged to have a reason. That would be the very definition of an arbitrary power. Leaving aside entirely the question of the disclosure of reasons to an affected person, it seems to me axiomatic that the rule of law requires all decision-makers to act fairly and rationally, meaning that they must not make decisions without reasons. As Henchy J. put it, in a celebrated passage in his judgment in State (Keegan) v Stardust Victims’ Compensation Tribunal  I.R. 642 at page 658, “the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”
44. In similar vein but with slightly different emphasis, Walsh J., in his judgment in East Donegal Co-operative Mart v Attorney General  I.R. 317 at 343-4 said of the powers conferred on a Minister, under consideration in that case, which were exercisable "at his discretion" or "as he shall think proper" or "if he so thinks fit" are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will.”
45. The fact that a power is to be exercised in the “absolute discretion” of the decision-maker may well be relevant to the extent of the power of the court to review it. In that sense, it would appear potentially relevant principally to questions of the reasonableness of decisions. It could scarcely ever justify a decision-maker in exceeding the limits of his powers under the legislation, in particular, by taking account of a legally irrelevant consideration. It does not follow from the fact that a decision is made at the absolute discretion of the decision-maker, here the Minister, that he has no reason for making it, since that would be to permit him to exercise it arbitrarily or capriciously. Once it is accepted that there must be a reason for a decision, the characterisation of the Minister’s discretion as absolute provides no justification for the suggestion that he is dispensed from observance of such requirements of the rules of natural and constitutional justice as would otherwise apply. In this connection I agree with the following remarks of of Hogan J., regarding the provision under consideration in this case, in his judgment in Hussain v. Minister for Justice  IEHC 171;
48. In A.B. v. Minister for Justice  IEHC 449, Cooke J. held that “[w]here the Minister is not relying upon his absolute discretion to refuse an application under s. 15 but is rejecting it upon the basis of non-compliance with one or more of the naturalisation conditions, his refusal is clearly amenable to judicial review and it would……… be one of the circumstances in which fair procedures would require the reason for refusal to be stated……”
49. In his judgment in Hussain v. Minister for Justice, cited at paragraph 45 for a different reason, Hogan J. held that “the Minister’s assessment of the good character issue [was] plainly subject to judicial review.” Edwards J. in LGH v. Minister for Justice, Equality and Law Reform  IEHC 78 held that the Minister had been wrong to take into account the fact that the applicant’s two adult sons had (relatively minor) convictions for motoring offences in concluding that the applicant was not of good character.
50. It does not appear from these cases that the courts generally regard the mere fact that the a person is applying for an important privilege, Irish citizenship, which he has no legal right to compel the State to grant him, means that he enjoys inferior legal protection when pursuing his application. Nor do I think that a distinction can be drawn for this purpose between compliance with the naturalisation conditions in s. 15(1)(a) to (e) and the broader and more general discretion which the Minister enjoys under the section. On the assumption that the applicant was, in fact, made aware of the Minister’s reason for refusal, there is no good reason why he should be prevented from seeking review of its lawfulness to the same extent as he would be entitled in relation to any alleged failure to comply with any of the statutory conditions.
51. The extent of the obligation of the Minister to give reasons for his decision must be considered, firstly, in the context of the developing general principles of judicial review and, secondly, by reference to the particular statutory provision.
52. The general principles of natural and constitutional justice comprise a number of individual aspects of the protection of due process. The obligation to give fair notice and, possibly, to provide access to information or, in some cases, to have a hearing are intimately interrelated and the obligation to give reasons is sometimes merely one part of the process. The overarching principle is that persons affected by administrative decisions should have access to justice, that they should have the right to seek the protection of the courts in order to see that the rule of law has been observed, that fair procedures have been applied and that their rights are not unfairly infringed.
53. The appellant cites the decision of O’Hanlon J. in the High Court in State (Lynch) v. Cooney  I.R. 337 for his conclusion that, if s. 31(1) of the Broadcasting Authority Act 1960 were to be construed as had been proposed by the State in the High Court in that case, “the discretion given to the Minister, once he has formed his opinion, is an absolute discretion and that it is not open to the Court to examine whether there were any reasonable grounds for the formation of such opinion by the Minister,” the provision was, in the view of the learned judge, unconstitutional. The section under consideration in that case did not speak of “absolute discretion.” The Minister was given power to prohibit the broadcasting of material which, in his opinion, would tend to incite crime or undermine the authority of the State. However, it is much more material to the present case to note the different view taken in this Court, to the altered position of the State, as expressed by O'Higgins C.J. at page 361 of the report:
The court must ensure that the material upon which the Minister acted is capable of supporting his decision. Since the Minister has failed to disclose the material upon which he acted or the reasons for his action there is no matter from which the court can determine whether or not such material was capable of supporting his decision. Since the Minister continues to refuse to supply this material, it must be presumed that there was no such material.”
The giving of reasons by the Minister could in one case be of particular importance as it would enable an applicant to meet the grounds on which the licence had been refused and, having done so, re-apply. Sub-section 6(a) of s.222B provides that the Minister may refuse an application where it “relates to a sea-fishing boat which is owned by a body corporate and the Minister is not satisfied that the body corporate is under the control of, beneficially owned by or under the control of and beneficially owned by a person or persons who, or, as may be appropriate, each of whom, is either a qualified individual or a qualified body.” If an application were being refused under this provision, it seems to me that it would be manifestly unfair for the Minister not to make it known because the ground for control could be overcome by making changes in the control or ownership of the corporation, and the party applying should not be deprived of the opportunity of doing this. It seems to me, accordingly, that in any case in which the applicant is a corporation the Minister should be required to give reasons for his decision as otherwise the party applying would not know if the application was being refused under sub-s. 6(a) or for some other reason.”
61. The only significant relevant decision of this Court is that in The State (Creedon) v. Criminal Injuries Compensation Tribunal  I.R. 51, which concerned a decision of the respondent tribunal to reject a claim for compensation under the former non-statutory Scheme of Compensation for Personal Injuries Criminally Inflicted. The applicant’s husband had died while trying to prevent a van in which his infant son was a passenger from crossing a road where children were likely to be playing. Thus, the deceased had been trying to save a human life. Although no contrary evidence had been offered, the Tribunal rejected the claim because it was “not satisfied that the death arose because of or in the course of…attempting to save human life.” The Court held unanimously, applying State (Keegan) v Stardust Compensation Tribunal  I.R. 642 that the decision of the Tribunal was at variance with reason and common sense. Finlay C.J. also stated, at page 55:
63. This body of cases demonstrates that, over a period approaching thirty years, our 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. Costello J. attached importance, quite correctly, to the presence or absence from the statutory scheme of a right of appeal. The absence of a statement of reasons may render such a right nugatory.
64. In the present case, the applicant points to the effective invitation to the appellant to “reapply for the grant of a certificate of naturalisation at any time.” That statement might reasonably be read as implying that whatever reason the Minister had for refusing the certificate of naturalisation was not of such importance or of such a permanent character as to deprive him of hope that a future application would be successful. While, therefore, the invitation is, to some extent, in ease of the appellant, it is impossible for the appellant to address the Minister’s concerns and thus to make an effective application when he is in complete ignorance of the Minister’s concerns.
65. More fundamentally, and for the same reason, it is not possible for the appellant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, not possible for the courts effectively to exercise their power of judicial review.
66. 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.
67. Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them.
68. It has to be regarded as significant that s. 18(1) of the Freedom of Information Act, 1997, though principally concerned with the provision of information to the public, envisages that public bodies will give reasons for their decisions at the request of an affected person.
69. Article 296 of the Treaty on the Functioning of the European Union provides that “[l]egal acts shall state the reasons on which they are based……” Article 41 of the Charter of Fundamental Rights of the European Union provides that every person benefits from what is called in the heading the “Right to Good Administration,” which includes “the obligation of the administration to give reasons for its decisions.” In a judgment delivered as recently as 15th November 2012, the Court of Justice in Case C-417/11 Council v Bamba, the Court explained the purpose of the provision as follows:
72. Lord Woolf dealt with the reasons issue as follows:
74. It might be thought unnecessary to call in aid this parallel development of the law in the United Kingdom. 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.
75. The Minister has submitted that there are issues of public policy that lean against the giving of reasons. He claims that this is apparent both from the nature of the Minister’s decision and the determination of the Information Commissioner under Section 18(2) of the Freedom of Information Act, 1997. No reasons related to the public interest have been disclosed even in the most general terms. Section 15(1)(b) of the Irish Nationality and Citizenship Act 1956, as amended, entitles to Minister to decline a certificate if he is not satisfied that an applicant complies with the requirement that he be of “good character.” The Minister has not sought to rely on non-compliance with that condition. Since the Minister has provided no reasons in this case, it is not clear whether he takes the position that he is not obliged to disclose reasons relating to character. I would not go so far as Barron J did in The State (Daly) v. Minister for Agriculture and infer that the Minister had no reasons. It is notable that the Minister has in the past disclosed reasons relating to the character of the applicant (see Hussain v. Minister for Justice and LGH v. Minister for Justice, discussed above). The Minister would have had power, pursuant to s. 17(2) of the Refugee Act, 1996 to restrict the rights otherwise enjoyed by the appellant, if, “in the interest of national security or public policy (“ordre public”) it is necessary to do so…” The Minister has not purported to exercise any of his powers in that respect. It can only be concluded that none of the grounds mentioned in those provisions existed in the appellant’s case.
76. The result is that the Minister has not suggested that there are any reasons relating to the appellant’s character which could justify refusing him naturalisation and that his rights under the Refugees Act are not restricted in the interest of national security or public policy. Furthermore, the Minister granted a certificate of naturalisation to the appellant’s wife with whom he has the right to live (in company with their children). One can understand the appellant being mystified. In my view, the Minister was under a duty to provide the appellant with the reasons for his decision to refuse his application for naturalisation. His failure to do so deprived the appellant any meaningful opportunity either to make a new application for naturalisation or to challenge the decision on substantive grounds. If reasons had been provided, it might well have been possible for the appellant to make relevant representations when making a new application. That might have rendered the decision fair and made it inappropriate to quash it. In the absence of any reasons, it seems to me that the appropriate order is one of certiorari quashing the decision.
77. Following the making of the order, it will be a matter for the Minister to consider the application afresh. It will be a matter for him to decide what procedures to adopt in order to comply with the requirements of fairness. It is not a matter for the Court to prescribe whether he will give notice of his concerns to the appellant or disclose information on which they may be based or whether he will continue to refuse to disclose his reasons but to provide justification for doing so. Any question of the adequacy of reasons he may actually decide to provide or any justification provided for declining to disclose them can be considered only when they have been given. At this stage, I would propose that the court make only the limited decision to quash the Minister’s decision.
78. In these circumstances, it is unnecessary to consider the constitutionality of the section. Equally, it is not necessary to consider the argument of the appellant to the effect that the section confers power on the Minister to deprive the applicant of access to citizenship of the European Union without any obligation to state reasons, thus infringing Article 41(2)(c), of the Charter of Fundamental Rights of the European Union. Those provisions would apply only to the extent that the State, in deciding on the appellant’s application was, in the words of Article 51 of the Charter “implementing Union law.” The Court does not need to decide if that was the case
79. For these reasons, I allow the appeal and would grant an order of certiorari quashing the decision of the Minister communicated in his letter of 20th November 2008 refusing the application for a certificate of naturalisation.