089

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Barr
• Judgment Date: 05 February 2025
• Neutral Citation: [2025] IEHC 118
• Docket Number: [Record No. 2023/1084JR]

Between

MM

Applicant

and

The International Protection Office, Ireland

and

The Attorney General

Respondents

[2025] IEHC 118

[Record No. 2023/1084JR]

THE HIGH COURT

International protection – Persecution – Alternative remedy – Applicant seeking to set aside the decision of the first respondent in which he was refused refugee status or international protection – Whether the applicant had an adequate alternative remedy

Facts: The applicant, a Somali national, challenged a decision of the first respondent, the International Protection Office, in which he was refused refugee status or international protection. He also challenged the consequential decision of the Minister for Justice to refuse him leave to remain in the country. The parties accepted that whether the second decision stood was dependent upon whether the decision of the first respondent was upheld. The applicant’s primary ground of challenge was that the first respondent had failed to consider a material part of his claim, which was to the effect that as he was a member of the Gabooye clan, he would face racial discrimination and persecution and a risk of serious harm if he were returned to Somalia. Allied to that ground, it was submitted that the first respondent had failed in its duty to provide cooperation by failing to obtain and have regard to up-to-date and relevant country of origin information (COI) in the form of a UNHCR report, which supported the applicant’s contention. In response, the respondents raised the preliminary objection that the applicant should not be permitted to challenge the decision of the first respondent by means of judicial review proceedings when he had an alternative remedy in the form of a statutory appeal to the International Protection Appeals Tribunal (IPAT); which option he had availed of by lodging a notice of appeal before that body.

Held by Barr J that the respondents’ preliminary objection was well-founded, citing Right to Know CLG v An Taoiseach & Ors [2023] IECA 68. He held that the applicant was not entitled to the relief sought due to the fact that he had a statutory appeal to IPAT, which was a full de novo hearing, in which he could raise whatever matters he wished in support of his claim for asylum or international protection; and he could produce whatever additional evidence he felt was appropriate. Barr J refused to grant the relief sought on the basis that the applicant had an adequate alternative remedy. Turning to the applicant’s main ground of challenge to the decision of the first respondent, Barr J held that while the first respondent found that the applicant was a member of the Gabooye clan, but did not consider whether he would face persecution or a risk of serious harm on that account, his decision was not deficient in that regard, as that case had not been made by the applicant; a decision maker cannot be expected to consider and determine issues that are not raised by an applicant. Given Barr J’s finding on the extent of the material claim made by the applicant, he held that the point concerning a failure on the part of the first respondent to obtain and consider up-to-date and relevant COI, and in particular his alleged failure to consider the UNHCR report, fell away.

Barr J refused the reliefs sought by the applicant in his notice of motion and in his statement of grounds. Barr J refused to set aside the decision of the first respondent or the decision refusing the applicant leave to remain in the State.

Application refused.

JUDGMENT of Mr Justice Barr delivered electronically on the 5 ^th day of February 2025 .

Introduction.

1 . In this application, the applicant, who is a Somali national of 23 years of age, challenges a decision of the first respondent dated 15 August 2023 in which he was refused refugee status or international protection. He also challenges the consequential decision of the Minister for Justice of 22 August 2023 to refuse him leave to remain in the country. The parties accepted that whether the second decision stood was completely dependent upon whether the decision of the first respondent was upheld.

2 . While the applicant challenged the decision of the first respondent on a number of grounds, his primary ground of challenge was that the first respondent had failed to consider a material part of his claim, which was to the effect that as he was a member of the Gabooye clan, he would face racial discrimination and persecution and a risk of serious harm if he were returned to Somalia.

3 . Allied to this ground, it was submitted that the first respondent had failed in its duty to provide cooperation by failing to obtain and have regard to up-to-date and relevant country of origin information (hereinafter “COI”) in the form of a UN HCR report of September 2022, which supported the applicant's contention that due to his membership of the Gabooye clan he would face discrimination and persecution if returned to Somalia.

4 . The remaining subsidiary grounds of challenge to the decision of the first respondent, will be dealt with later in the judgment.

5 . In response, the respondents raise the preliminary objection that the applicant should not be permitted to challenge the decision of the first respondents by means of judicial review proceedings, when he has an alternative remedy in the form of a statutory appeal to the International Protection Appeals Tribunal (“IPAT”). Which option he has availed of by lodging a notice of appeal before that body.

6 . Without prejudice to that submission, the respondents deny that the decision of the first respondent is unlawful for failure to consider the applicant's claim to international protection based on his membership of the Gabooye clan, because it is submitted that when one reads the entirety of his application for international protection, including his application form, his replies in his questionnaire, his replies in the interview and his application for leave to remain, it is clear that his only ground for seeking refugee status or international protection was based on his fear of persecution or harm at the hands of a terrorist organisation known as Al Shabaab.

7 . It was submitted that the reference to racial discrimination in the applicant's application was vague and did not maintain that he had suffered, or would suffer, persecution or serious harm as a result of his membership of the particular clan.

8 . It was submitted that in these circumstances the decision of the first respondent had fully addressed all material aspects of the applicant's claim for protection.

9 . It was submitted that the UNHCR report did not assist the applicant as it only stated that members of the Gabooye clan “ may” fear persecution or risk of harm in certain parts of the country. There was no evidence from the applicant, nor in the documentation before the decision maker, that that would happen in the part of Somalia from which the applicant came.

The Applicant's Story.

10 . The applicant's account of the persecution and risk of serious harm that he faces in Somalia was set out in the following way: he stated that he lived in the village of Qoryooley with his family. He attended a Qur'an school with his brother. In 2015 the teacher advised them to join Al Shabaab. The applicant's father took them out of the school because of this. Two days later, men came to their home, killed his father and abducted the applicant and his brother. They were taken to a camp near the village with other children and told that they would be joining Al Shabaab. They were detained for two weeks. On the second week, the applicant's brother tried to escape and was executed. After two weeks the Somalian army freed the captives, including the applicant.

11 . The applicant went to stay with his uncle, who lived nearby. The same day, his uncle was contacted by Al Shabaab and was told to return the applicant to them on pain of death. The applicant's uncle arranged for the applicant to leave Somalia.

12 . Thereafter, the applicant travelled to Ethiopia and Sudan; thence to Libya, where he remained for approximately five months. He then travelled via Italy to Sweden, where he applied for international protection. He received a negative determination to that request in 2018. He left Sweden in 2021. The applicant travelled to France, where he remained for several months. He then travelled to Ireland, arriving illegally in the State on 25 January 2022. He applied for international protection in the State on 15 February 2022.

Conclusions.

13 . The court is satisfied that the respondents' preliminary objection is well-founded. It is settled at law that where there is a statutory appeal provided to an applicant, they will have to exhaust that method of redress before bringing judicial review proceedings challenging the first instance decision: see BNN v The Minister For Justice, Equality and Law Reform, & The Refugee Applications Commissioner [2008] 1 IR 719; HO v Minister for Justice Equality and Law Reform [2012] IEHC 231; Right to Know CLG v An Taoiseach & Ors [2023] IECA 68.

14 . The court accepts that in some rare and exceptional cases it will be appropriate for a party to proceed to challenge a decision at first instance, notwithstanding that there may be an appeal provided for under the relevant statutory code. However, this will only arise where the hearing at first instance was so...