A.B v Chief International Protection Officer - Asylum Judicial Review

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  A.B v The Chief Internation Protection Officer & Ors (Approved) [2026] IESC 23 (25 March 2026)

URL: https://www.bailii.org/ie/cases/IESC/2026/2026IESC23.html
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[2026] IESC 23 | | |
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AN CH?IRT UACHTARACH

THE SUPREME COURT

[2026] IESC 23

Supreme Court Record No.: S:AP:IE:2025:000091

High Court Record No.: 2025/689JR

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O'Donnell CJ.

Charleton J.

Woulfe J.

Murray J.

Donnelly J.

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Between/

AB

Appellant

AND

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THE CHIEF INTERNATIONAL PROTECTION OFFICER AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND

THE MINISTER FOR JUSTICE

Respondents

JUDGMENT of Ms. Justice Donnelly delivered on the 25 th of March 2026

1. May an applicant for international protection seek judicial review of a decision of the International Protection Officer on grounds of lack of fair procedures when a statutory appeal to the International Protection Appeals Tribunal is also available? ?This appeal engages with the long-established discretion of the courts to decline to exercise their judicial review powers where there is an alternative remedy available to an applicant.? This judgment complements my judgment in Amariei v Chief Appeals Officer & Ors [2026] IESC 22 also delivered today.

2. On 15 July 2022, a Georgian national ("the appellant") made an application for international protection in Ireland stating that he had been subject to persecution, including a physical assault, in Georgia because he reported electoral fraud/wrongdoing which he witnessed as an election observer during a local election in his hometown in 2021.? He also claimed that he was followed and threatened in the following months.? The appellant's application was refused at first instance by the International Protection Officer ("IPO").? An IPO is a person authorised by the Minister for Justice, Home Affairs and Migration ("the Minister") under s. 74 of the International Protection Act, 2015 ("the 2015 Act") to carry out functions conferred on them under that Act.? An IPO is independent in the performance of their duties.? The appellant's papers-only appeal to the International Protection Appeals Tribunal ("the Tribunal") established under the 2015 Act was refused on 24 January 2024.

3. On 4 November 2024, the appellant obtained permission from the Tribunal to make a subsequent application for international protection pursuant to s. 22 of the 2015 Act.? This was on the basis that he had provided further evidence to support the credibility of his claim.? The Tribunal found that in light of the new evidence, documentary evidence (a contemporaneous medical report and two police reports) which had been rejected as non-probative may need to be 're-evaluated' in light of the new evidence.? Section 22 permits subsequent applications to be brought by an applicant with the consent of the Minister and provides for such consent to be given where, inter alia, new "elements or findings" are available which make it "significantly more likely" that the person concerned will qualify for international protection and the person was, through no fault of their own, incapable of presenting those elements or findings for the purposes of their previous application.

4. The appellant's second application was again unsuccessful at first instance before the IPO.? The appellant considered that the decision of the IPO was invalid because (1) despite being told by the Tribunal to re-evaluate certain earlier documentation, the IPO failed to assess that documentation and other material evidence (two reports from the police in Tbilisi which the appellant had submitted in his first application, a report of the attack and other incidents from a Georgian NGO 'Sociometry', and the contents of the s. 22 application and appeal) and (2) the IPO failed to make any finding on a core claim (that he had been an election observer at the local election in October 2021 and had been physically attacked as a result of his identification of alleged corruption and intimidation in the electoral process).

5. There was, on the appellant's case a significant and inexplicable absence of consideration by the IPO of the relevant documentation.? Despite having been before the Tribunal in respect of the s. 22 application and that some documentation, e.g. the police reports had been before the IPO originally, these were not listed as on file by the IPO in respect of the renewed application.? There was also a dispute between the IPO and the appellant as to whether certain documents had been submitted and whether the IPO had informed the appellant that he had ten days in which to produce them.

6. Notwithstanding that the appellant was entitled to appeal the decision of the IPO to the Tribunal, the appellant considered that in light of these significant failures on the part of the IPO, collectively and individually, it was appropriate to seek judicial review of that decision in the High Court.? The appellant emphasised the extent of the claimed failures and the clear illegalities of the IPO's decision and submitted that it was an exceptionally poor-quality decision.? Thus, the gravity of the breaches of fair procedures is relevant when a consideration of the overall circumstances is undertaken in the exercise of the court's discretion as to the availability of judicial review. ?Moreover, the appellant asserted and the respondent accepted, that for the purpose of determining the issue in this appeal, his submissions on these claimed failures and illegalities must be taken at their height.

7. Therefore, the appellant lodged an appeal with the Tribunal and also brought an application for leave to seek judicial review.? As well as seeking an order of certiorari of the IPO's decision, the appellant sought a stay on the operation of that decision and, in the alternative, an injunction restraining the Tribunal from processing his appeal until the determination of the judicial review proceedings.

The Ex Tempore Judgment of the High Court

8. The application for leave to seek judicial review was made ex parte to the High Court (Owens J.) on 9 June 2025.? The appellant was refused leave.? The judgment records that while Owens J. was initially minded to grant leave on the basis of the case law cited by the appellant (AE v Chief International Protection Officer [2023] IEHC 695; FO v Minister for Justice & Refugee Applications Commissioner [2009] IEHC 300 (" FO v Minister for Justice ") and PD v Minister for Justice and Law Reform & Ors [2015] IEHC 111) (" PD v Minister for Justice ")) he was then made aware that the appellant had an extant appeal pending before the Tribunal.? Owens J. took the view that a "full remedy" was provided by that appeal and that it was not appropriate for the appellant both to lodge an appeal and to also seek judicial review.? AE v Chief International Protection Officer was cited by counsel for the appellant as a precedent where the applicant for international protection was held to be entitled to pursue judicial review proceedings despite lodging an appeal to the Tribunal, but this failed to persuade the High Court.

9. Counsel for the appellant then made an application for leave to appeal the refusal of leave pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 (as amended), citing RS v Chief International Protection Officer [2018] IECA 322 as authority for a contrary view of the law as to whether an applicant is entitled both to appeal a first instance international protection decision and seek judicial review of that decision.? However, the Court did not consider RS v Chief International Protection Officer to be of assistance because, in that case, the Court had been satisfied that leave should be granted and had the appeal not been stayed, the judicial review proceedings would have become moot.? In the instant case, the Court was of the view that "the errors of law were not sufficiently clear to justify the granting of leave to seek judicial review in circumstances in which the Applicant had the alternative remedy of appeal available to him and had brought such an appeal" and further observed that the judicial review of an IPO decision is only available where the IPO made "some error which deprived an Applicant of a hearing."

Issue

10. In its determination published on 30 July 2025 ([2025] IESCDET 110), this Court granted leave to appeal on the following issue:

Where an applicant for international protection under the 2015 Act is dissatisfied with the decision made at first instance on their application, in what circumstances may such an applicant seek judicial review of that decision given the availability of an appeal from that decision to the Tribunal under Part 6 of the 2015 Act?

11. Although the respondents had not appeared in the High Court because of the ex parte nature of the application, this Court required that they be put on notice of this appeal and granted an entitlement to appear and be heard in the appeal.? The first and third respondents ("the State respondents") took that opportunity to participate in this appeal.

Overview of the International Protection Process

12. The relevant mechanisms in the 2015 Act for the adjudication of applications for international protection at first instance and on appeal are set out in the following paragraphs.

13. In Part 4, s. 28 of the 2015 Act, a duty is placed on the IPO and Tribunal to assess the relevant elements of the claim. ?The section provides as follows:

"(1) An international protection officer shall, in co-operation with the applicant, assess the relevant elements of the application.

(2) The Tribunal shall, for the purposes of an appeal under section 41 in co-operation with the applicant, assess the relevant elements of the application.

(3) The elements referred to in subsections (1) and (2) consist of the applicant's statements and all the documents submitted by him or her regarding his or her?

(a) age,

(b) background, including that of relevant relatives,

(c) identity,

(d) nationality or nationalities,

(e) country or countries, and place or places, of previous residence,

(f) previous asylum applications, whether made in the State or outside it,

(g) travel routes,

(h) identity and travel documents, and

(i) reasons for applying for international protection."

14. Section 28(4) places an onus on the IPO and the Tribunal and provides as follows:

"The assessment, by the international protection officer of an application, and

by the Tribunal of an appeal under section 41, shall be carried out on an

individual basis and shall include taking into account the following:

(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied;

(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

...

(f) the general credibility of the applicant."

15. Part 5 of the 2015 Act provides for the examination of the application at first instance for the purpose of enabling the IPO to decide whether to recommend the grant or refusal of international protection.? Section 35 requires the carrying out of a personal interview in a comprehensive manner as part of this examination.? Under s. 39, the IPO must cause a written report to be prepared which refers to matters relevant to the application which were raised by the applicant and any other matters deemed appropriate, as well as the recommendations of the IPO in respect of granting the applicant with a refugee declaration or subsidiary protection.?

16. Sections 41-46 of Part 6 of the 2015 Act provide for appeals to be made by the applicant to the Tribunal against recommendations contained in the s. 39 report.? Section 42(8) provides:

"For the purposes of an oral hearing, the Tribunal may?

(a) direct in writing any person, other than the Minister or an officer of the Minister, whose evidence is required by the Tribunal to attend before the Tribunal on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or control specified in the direction,

(b) direct any such person to produce any specified document or thing in his or her possession or control ..."

17. Section 43 provides for accelerated appeal procedures where the report under s. 39 includes any of the findings referred to in s. 39(4) (such as where the applicant's country of origin is a safe country of origin, as in this case) and, that "the Tribunal, unless it considers it is not in the interests of justice to do so, shall make its decision in relation to the appeal without holding an oral hearing..."

18. Section 46(1) provides that when reaching its decision, the Tribunal shall consider the following:

"(a) the notice of appeal;

(b) all material furnished to the Tribunal by the Minister that is relevant to the decision as to whether the applicant should be given a refugee declaration or, as the case may be, a subsidiary protection declaration;

(c) the recommendation under appeal;

(d) any observations made to the Tribunal by the Minister or the High Commissioner;

(e) where an oral hearing has been held, the evidence adduced and any representations made at that hearing;

(f) such other matters as the Tribunal considers relevant to the appeal."

The Appeal

19. The appellant put forward two core reasons why he claimed that he had substantial grounds to establish his right to obtain relief by way of judicial review.? His first core ground was that as a matter of EU law, there was a violation of his right to be heard under Council Directive 2004/83/EC ("the Qualification Directive"). ?His second core ground was that the appeal to the Tribunal is not an adequate alternative remedy which engages the court's discretion to refuse judicial review.? He claimed that this is so because the nature of the breaches of natural justice by the IPO deprived him of his entitlement to two fair hearings, i.e. before the IPO and if required, before the Tribunal.

20. Although the precise form of procedures is not laid down by the EU legislation, there is a requirement that the procedures be compatible with EU law.? There have been several significant decisions of the Court of Justice of the European Union ("the Court of Justice") on the procedures in this jurisdiction.? The violation of the EU right to be heard and the right to judicial review where that same violation is considered a breach of natural and constitutional justice are interlinked matters.? While illegalities can arise within the operation of the system for adjudicating on international protection, the remedy of judicial review is, in principle, available.? However, as a discretionary remedy, there are restrictions on its availability.? The requirement to exhaust domestic remedies was the subject matter of a judgment which I also delivered today in Amariei v Chief Appeals Officer & Ors [2026] IESC 22 (" Amariei ") and the principles set out therein are applicable here.? This case specifically raises the extent of that requirement where the remedy of judicial review is sought for the purpose of addressing a breach of fair procedures in the decision of the IPO.

The Appellant's Submissions

The EU Law Right to be Heard

21. In submitting that the application was governed by the Qualification Directive, the appellant referred to MM v Minister for Justice [2013] 1 IR 370, [2013] IEHC 9 and the decision of the Court of Justice in Case C-277/11 MM v Minister for Justice ECLI:EU:C:2012:744 ** which preceded it.? On a preliminary reference by the High Court, the Court of Justice noted that Articles 12 and 13(3) of Council Directive 2005/85/EC ("the Procedures Directive") provide that before a decision is taken, the applicant for asylum must be given the opportunity for a personal interview on his application and a right to communicate his views effectively.? His right to be heard required the authorities to examine, carefully and impartially, his individual case and give reasons for their decision if refused.

22. The appellant submitted that each of his complaints about the impugned IPO decision fell within the definition of the breach of the right to be heard due to the exclusion of material evidence, exacerbated by the medical report being discarded as non-probative and because the core claim which was vouched with documentary evidence was not adjudicated upon.? He asserted that if it was implicitly rejected that he was an election observer, no reason was given for that conclusion.

23. The appellant submitted that the High Court was correct to say that not being afforded a hearing is a ground for seeking the quashing of a decision.? He contended that if the Court is to apply a test of whether the appellant was heard, the nature of that test in the present context is to be gleaned from MM v Minister for Justice and the appellant meets that test.

The Alternative Remedy

24. The appellant submitted that the core case concerning the inadequacy of an alternative remedy is that of Stefan v Minister for Justice [2001] 4 IR 203, [2001] IESC 92.? The more recent case law such as AE v Chief International Protection Officer, he submitted, ** may be seen as continuing the application of the jurisprudence in Stefan v Minister for Justice which concerned the omission of a material part of an international protection applicant's questionnaire which was held to be in breach of fair procedures.? This Court held that the applicant was entitled to "a primary decision in accordance with fair procedures and an appeal from that decision" and stated that "a fair appeal does not cure an unfair hearing."

25. The appellant highlighted the case of FO v Minister for Justice which he said was a routine application of the well-established law on alternative remedies.? The appellant also placed significant reliance on the case of AE v Chief International Protection Officer where the High Court (Siobh?n Phelan J.) quashed a decision of the IPO in which material evidence was submitted but not considered.? The Court found that "the documentation at issue properly fell to be weighed by the IPO in its consideration of core claims", and that the IPO did not "pursue enquiries which might otherwise have been prompted by the terms of this documentation leading to a more thorough examination of his claim."? In reviewing the relevant statute, Phelan J. held that under s. 28 of the 2015 Act, an applicant has the right to have the documentation assessed both at first instance before the IPO and on appeal before the Tribunal, and where there is ignorance of the documents submitted or they are absent, this may undermine the credibility of the claim.

26. The appellant submitted that a similar lapse in fair procedures arose in the present case by reference to the police reports which the IPO wrongly stated were not on file as well as to the failure to consider the Sociometry report or the content of the s. 22 application and appeal (especially the country of origin information).? The appellant asserted that there are similarities with AE v Chief International Protection Officer in so far as the applicant's credibility in that case was undermined by the quality of his answers at interview, and the breach of fair procedures arising owing to these findings was made in a vacuum by reason of the failure to weigh relevant documentary evidence.

Failure to Consider a Core Claim

27. The appellant submitted that the impugned decision did not decide the core claim as to whether the appellant was an election observer.? He contended that had it done so and had it also weighed the material evidence vouching that status, this would then have formed the foundation for considering the rest of the evidence 'in the round' and would have required the remaining evidence to be decided in his favour.? The appellant referred to MAB v Refugee Applications Commissioner [2014] IEHC 64, where the necessity to decide a core claim was described as a claim which "would provide a significant substratum of accepted fact."? The appellant also relied upon PD v Minister for Justice, in submitting that a comparable complaint grounded an order of certiorari.

28. The appellant referred to MM v Chief International Protection Officer [2022] IECA 226, where the Court of Appeal held that certiorari and remittal were warranted because the first instance decision failed to pose and answer the questions as to whether the applicant was of lesbian sexual orientation and if so, if she was at risk of persecution if returned to her country of origin.? That case primarily concerned the interpretation of the 2015 Act relating to statutory procedures in respect of processing international protection claims by IPOs, and the question of exhausting alternative remedies is not addressed in the judgment.

The Remedy of Judicial Review

29. The appellant submitted that the case law, both by reference to the established tests and the right to be heard, demonstrates that his case falls into the category of exceptional cases where there was a significant breach of fair procedures, both or either by reason of the failure to consider material documents or to reach a clear conclusion on a core claim.? He also submitted that the 2015 Act contemplates that a decision of the IPO to refuse international protection at first instance can be challenged by way of judicial review in appropriate cases.

30. The appellant stated that the combination of judicial review and the right to appeal is regarded as generally fulfilling the right to an effective remedy which the appellant is entitled to under EU law.? He referred to Case C-175/11 HID & BA v Refugee Applications Commissioner & Ors ECLI:EU:C:2013:45 (" HID ") which concerned whether the Refugee Appeals Tribunal was sufficiently independent to constitute an effective remedy.? The appellant emphasised that the effective remedy existing in Ireland has been interpreted to exist specifically in the context of the capacity of an applicant to challenge a first instance decision by way of judicial review.

31. The appellant stated that the case law distinguishes between the capacity of the High Court to cure a procedural defect, as opposed to the Tribunal, which may cure erroneous findings on the merits.? In that regard, he referred to Stefan v Minister for Justice in which the Court stated that the applicant is entitled to a primary decision in accordance with fair procedures and an appeal from that decision.? The appellant emphasised that Stefan v Minister for Justice was not only a case of not considering a valid submission, but also of not fully considering a relevant question.? The appellant contended that this latter element touches on the issue of non-adjudication of a material claim in the present case.? He referred to AE v Chief International Protection Officer, where Phelan J. considered the dicta in Stefan v Minister for Justice and held that the availability of a fair appeal did not cure the absence of a fair first instance decision, and to conclude otherwise would give license to the IPO to ignore documents in a manner which would seriously undermine the integrity of the process.? Phelan J. therefore decided an appeal was not an adequate remedy in the circumstances.

32. The appellant relied on Habte v Minister for Justice [2021] 3 IR 627, [2020] IECA 22 where the Court of Appeal held that the onus is on the party seeking relief by way of judicial review to establish either that an alternative remedy is not adequate or that there is a particular exigency which renders it unjust that it should have to be exhausted.? Although it was held that the requirement to exhaust domestic remedies is the default position, the Court also noted that this requirement may be met where the ground of challenge includes a case based on fair procedures, as the appeal or review of a procedurally unfair process may not reinstate the applicant to the position they would have been in had the process been conducted regularly in the first instance.

33. In submitting that each issue arising goes to the fairness of procedures and thus judicial review is the appropriate and effective remedy, the appellant also raised the case of The State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 (" Abenglen ") and highlighted the statement of Walsh J. that "there is no doubt that the existence of alternative remedies is not a bar to the making of an order of certiorari."? He submitted that the default papers-only appeal will of necessity consider matters for the first time and that even with the possibility of an oral hearing in the interests of justice, this cannot cure the particular issues in this case.

34. The appellant contended that given the nature of the errors identified, the appeal hearing would be tantamount to a first instance decision on core issues.? He submitted that, having regard to the EU law right to an effective remedy, the more accurate formulation of the issue is that while merits-based errors are properly addressed through the statutory appeals process, actionable procedural defects arising at first instance are appropriately dealt with by way of judicial review.

35. On the point of discretion, the appellant submitted that given that the procedure is governed by EU law which requires the remedy to be effective, the discretion of the High Court may now have to be viewed as somewhat attenuated.? The appellant asserted that such a discretion is an expression of national procedural autonomy, which must be bounded by the principles of equivalence and effectiveness.

The State Respondents' Submissions

36. The State respondents accepted, notwithstanding the substantial grounds test required by s. 5 of the Illegal Immigrants (Trafficking) Act, 2000, that this Court is required to take the appellant's case at its height since this is an appeal from an ex parte hearing for leave before the High Court. ?They did not engage with the grounds for that reason.? At a level of principle however, the State respondents submitted that even where a court is satisfied that an applicant may have either good or substantial grounds, they should nevertheless be refused leave on the basis that there is an alternative remedy capable of vindicating their position.? The State respondents pointed to the finding of the Court of Justice that where there is an independent and specialist decision-maker, that in and of itself constitutes an effective remedy under EU law.

37. The State respondents submitted that the alternative remedy by way of an appeal to the Tribunal is a robust one capable of addressing any procedural error made at first instance.?? Section 28 of the 2015 Act mirrors the provisions of Article 4 of the Qualification Directive.? Other provisions of the Act provide the procedural safeguards required by EU law.

38. Relying on Case C-585/16 Alheto ECLI:EU:C:2018:584 ** (" Alheto "), the State respondents said the ruling provides for the meaning of a full and ex nunc appeal.? The Court of Justice held that ' ex nunc ' ** points to the obligation of the tribunal to take into account new evidence arising after the adoption of the decision under appeal, and that 'full' confirms that the tribunal must examine both the evidence the determining authority took into account or could have taken into account, as well as new evidence. ?Thus, the State respondents submitted, the appeals body may examine evidence for the first time.? They said that this is also reflected in s. 42(8) of the 2015 Act.

39. Additionally, the State respondents submitted that when plainly read, the materials that must be considered by the Tribunal under s. 46(1) will have arisen after the first instance hearing and will not have been before the decision maker at first instance.? Therefore, in light of the foregoing, they asserted that as a matter of law and principle it is permissible for the Tribunal to hear evidence for the first time not heard at first instance or to direct the production of new material only available by the appeal stage.? The State respondents contended that if this is a correct reading of the powers of the Tribunal under the 2015 Act, it is difficult to see how the appellant's argument - that it is a fundamental breach of fair procedures for a document to be considered for the first time at appeal stage - can be plausibly stated, let alone sustained.

40. The State respondents submitted that despite the appellant being subject to the accelerated procedure in s. 43 (which provides that the Tribunal will not automatically hold an oral hearing but can do so where the interests of justice require it) the appellant is not barred from submitting or having new documents and information considered for the first time on appeal.? They further disputed that there can be a breach of natural justice by reason only of the fact that the appellant must request an oral hearing, when it should be presumed that procedural fairness and the principles of constitutional justice will be adhered to by the Tribunal (East Donegal Co-Operative Livestock Mart Limited v Attorney General [1970] IR 317); and where any unfair refusal to accede to such a request is actionable in its own right.

41. The State respondents noted that the appellant has lodged a Notice of Appeal to the Tribunal which entails a requirement to list all the documents that accompanied the s. 39 recommendation plus any additional documentation.? They also noted that the appellant has requested an oral hearing and submitted that if the Tribunal declines to hold an oral hearing, the appellant will still have a remedy available in judicial review.

42. The State respondents also referred to Case C-756/21 X v The International Protection Appeals Tribunal ECLI:EU:C:2023:523 where the Court of Justice held that the obligations on the IPO also apply to the Tribunal.? The Court of Justice ruled that it follows from the applicable Irish legislation that:

"[T]he IPAT is required to carry out a full and ex nunc review of decisions of the IPO; that it has, in particular, the power to request inquiries to be made by the Minister for Justice and Equality and to request information to be furnished by the Minister and that the IPAT may, inter alia, on the basis of such evidence, affirm the decisions of the IPO or set them aside and make a binding recommendation that refugee or subsidiary protection status be granted."

43. The State respondents highlighted that the Court of Justice notably pointed out that the Tribunal is a tribunal of first instance, whereas the High Court on judicial review of a tribunal decision was a court of second instance.? The Court of Justice held that the review of a decision of the Tribunal is limited, first, to the grounds that the decision is ultra vires; that it turns on an error of law or material error of fact; that the decision is irrational or disproportionate; and that it has been taken in breach of fair procedures or legitimate expectations and, secondly, in the event of a finding of illegality, to the annulment of those decisions and remittal of cases to the Tribunal.

44. The State respondents noted that as a matter of EU law, the remedy provided by the Tribunal has been recognised by the Court of Justice as meeting the requirements of Article 39 of the Procedures Directive without requiring the further judicial review jurisdiction of the High Court to satisfy these requirements (X v The International Protection Appeals Tribunal ** paras [64]-[66]).? They also submitted that the Court of Justice recognised that a full and ex nunc review of the type required by Article 39 and effected by the Tribunal provides an effective remedy as per Article 19(1) of the Treaty on the European Union and must be operated to give effect to the rights of the defence under Article 47 of the Charter of Fundamental Rights of the European Union.

45. With respect to the appellant's reliance on AE v Chief International Protection Officer, the State respondents submitted that Phelan J. reached a different conclusion a few months earlier in the case of ESO v The International Protection Office [2023] IEHC 197 where she held that the alleged errors in the first instance decision were not so fundamental as to have deprived the IPO of jurisdiction in a manner to warrant intervention by way of judicial review.? Phelan J. held that the case was in a different class to Stefan v Minister for Justice; it could be appropriately dealt with at an oral hearing by the Tribunal under the 2015 Act and she reiterated that judicial review is only warranted in rare and exceptional cases.

46. The State respondents submitted that the foregoing demonstrates that the alternative remedy available to the appellant by way of an appeal to the Tribunal under the 2015 Act is a robust one, fully equipped and purposefully designed to meet any procedural error made at first instance.

Judicial Review

47. The State respondents submitted that the starting point is the judgment of this Court in Abenglen.?

48. With respect to the decision in Stefan v Minister for Justice, the State respondents submitted that the context of that case was very different to the instant case.? In Stefan v Minister for Justice, the decision was made at a time when applications were dealt with by way of an administrative scheme and which pre-dated a variety of important legislative changes, most obviously, the introduction of the 2015 Act.? They also submitted that the test in Stefan v Minister for Justice is difficult to reconcile with Part 6 of the 2015 Act, which provides for an appeal to be made to the Tribunal of a s. 39 decision.? The State respondents noted that Stefan v Minister for Justice was decided subsequent to Abenglen and that this Court held that the question of whether or not to decline to grant certiorari was not an absolute one but should rather be based on context.? The Court held that the presence of a pending appeal is not a bar to the court exercising its discretion but is a factor to be considered.? The State respondents noted that in the operative part of the judgment, this Court referred to Buckley v Kirby [2000] 3 IR 431, [2000] IESC 18, and, thereafter, this Court stated:

" Certiorari may be granted where the decision maker acted in breach of fair procedures.? Once it is determined that an order of certiorari may be granted the court retains a discretion in all the circumstances of the case as to whether an order of certiorari should issue."

49. The State respondents submitted that in Stefan v Minister for Justice this Court was concerned with a different context where a court found following a full hearing that an applicant is entitled to certiorari and was considering whether it should nonetheless decline to make that order.? They contended that the simple fact that proceedings include a claim that a decision maker has acted in breach of fair procedures does not preclude a court forming the view that an adequate alternative remedy is available.? They asserted that it would otherwise be inconsistent with both the discretionary nature of this principle and with the public interest in allowing a presumptively valid statutory process to proceed to conclusion. ?They said that applies, a fortiori, where the process provides opportunities at which procedural errors may be corrected as it progresses.? They submitted that such an approach would also inevitably encourage applicants to characterise their complaints as a question of fair procedures, as in reality, the distinction between complaints of irrationality, unreasonableness and fair procedures can be relatively fine.? The State respondents submitted that this is why the approach applied by this Court in Stefan v Minister for Justice, and subsequently, of considering it in the context of the relative merits of an alternative remedy, is appropriate.

50. With reference to the dicta in Stefan v Minister for Justice raised by the appellants - "[t]he applicant is entitled to a primary decision in accordance with fair procedures and an appeal from that decision ... A fair appeal does not cure an unfair hearing" - the State respondents submitted that it must be read in light of the earlier passages in that case outlining the relevant legal principles.? When so read, the State respondents contended, these points cannot support the proposition that the appellant appears to advance that an alleged breach of fair procedures means that an appeal process cannot provide an adequate alternative remedy.

51. The State respondents argued that firstly, that proposition is inconsistent with the discretion of the court to decide whether or not to make an order even after it has been determined that a decision maker acted in breach of fair procedures.? Secondly, they said that it is inconsistent with the later decision of Denham J. (as she then was) in Tomlinson v Criminal Injuries Compensation Tribunal [2006] 4 IR 321, [2005] IESC 1 where she restated her view that the court retains a discretion in all the circumstances of the case as to whether an order of certiorari should issue.? Thirdly, they stated that the proposition is inconsistent with later authorities which consistently emphasise a contextual approach.? They referred to EMI Records v Data Protection Commissioner [2014] 1 ILRM 225, ** [2013] IESC 34 (" EMI ") where it was stated that the default position is to pursue a statutory appeal over judicial review because it must be presumed that the Oireachtas established a form of statutory appeal as a means by which to challenge an initial decision.

Decisions in the Immigration Context

52. The State respondents noted that in the immigration cases following Stefan v Minister for Justice, the High Court appeared to take quite a restrictive approach, mostly refusing the grant of certiorari on the basis that the statutory appeal was more appropriate.? In cases such as BNN v Minister for Justice [2009] 1 IR 719, [2008] IEHC 308 (" BNN ") and FO v Minister for Justice the High Court emphasised that certiorari should lie only in rare and exceptional circumstances and where it is necessary.? In FO v Minister for Justice, Cooke J. refused to grant leave finding that the applicant could avail of the statutory remedy of appeal, and stated the court should only intervene in "rare and exceptional cases where it is necessary to do so in order to rectify a material illegality in the report which is incapable of or unsuitable for rectification by the appeal; which will have continuing adverse consequences for the applicant independently of the appeal".

53. The State respondents raised the case of A (MA) (an Infant) (Nigeria) v Minister for Justice & Ors [2011] IEHC 485 where Cooke J. held that the High Court will only entertain judicial review of a s. 13 report when it is shown to have some potentially independent consequences for an applicant which is incapable or inapt to be dealt with by the statutory appeal.? On appeal to this Court (MARA (Nigeria) (an infant) v Minister for Justice and Equality [2015] 1 IR 561, [2014] IESC 71), Charleton J. stated that the powers of the Refugee Appeals Tribunal which were "as ample, or close to as ample, as those of a court demonstrate unequivocally the duty of the Refugee Appeals Tribunal to fully scrutinise an appeal" and that, therefore, on appeal, the issue is not simply whether any error was made at first instance.? He stated that the form of appeal is a "full and thorough enquiry" into the relevant documents and observations as previously furnished to the Refugee Applications Commissioner.? The State respondents submitted that the foregoing applies equally to the extensive powers given to the Tribunal under the 2015 Act to hold a thorough appeal of a first instance decision.

54. The State respondents raised a final pre-2015 Act case; PD v Minister for Justice in which the High Court (Mac Eochaidh J.) stated that "judicial review in respect of decisions of the Refugee Applications Commissioner is rarely permitted and only in cases which at least involve errors as to jurisdiction but even then, the court retains discretion to refuse."? The High Court relied in particular on the dicta in Stefan v Minister for Justice that a fair appeal does not cure an unfair hearing.? It considered the BNN approach that judicial review is only available in "rare and limited circumstances" and that an applicant had to establish a "clear and compelling case that an injustice has been done that is incapable of being remedied on appeal".? The underlying issue of an alleged failure to investigate the applicant's core claim was held to be a "significant error as to jurisdiction" and was a breach of s. 11 of the Refugee Act, 1996 and of Article 4 of the Qualification Directive.? The Court held that the possibility of remedying the error on appeal was not an adequate response to the level of illegality in the case and judicial review was held not to be limited to cases where the error is incapable of being addressed by the Refugee Appeals Tribunal.

55. The State respondents stated that since the 2015 Act, the High Court has considered the alternative remedy directly in a number of cases including those referred to above.? In AE v Chief International Protection Officer, Phelan J. held that it was the degree of potential unfairness which flows from the identified error that may determine the side of the line on which the case falls.? The State respondents noted that in MM v Chief International Protection Officer the Court rejected the third issue that there had been a failure of the IPO to provide reasons on why the principle of non-refoulement did not apply precisely on the basis that it was more appropriate for an appeal to the Tribunal.

56. The State respondents referred to SA (Zimbabwe and South Africa) v Chief International Protection Officer [2024] IEHC 477 in which Gearty J., relying on Stefan v Minister for Justice, quashed the first instance decision where errors in recording the details from documents supplied by the applicant, combined with initially misleading answers given by her, led the IPO to make a finding on nationality which appeared to be refuted by authentic identity documents.? The High Court concluded that the Tribunal can deal with most errors but in that case, the whole process is affected and any appeal hearing becomes, to a very large extent, a first instance hearing before the Tribunal.

57. The State respondents submitted that all complaints by the appellant are eminently capable of being remedied on appeal in accordance with the wide powers given to the Tribunal.? They stated that if the IPO failed to consider the police reports, the appellant may have those reports considered in full, ex nunc, by the appropriate Tribunal member.? They contended that the Tribunal may also consider the evidence as to why he assumed that all his previous applications would be on the file before the IPO for the purpose of the second application.? They said that the Tribunal will also be able to consider whether the appellant was given ten days to submit the police reports, which is a fact-based issue more appropriate for a statutory appeal.

58. The State respondents contended that the Tribunal is in any event under its own duty under s. 28 of the 2015 Act to determine whether the appellant was an election observer and whether this is core to the claim, as maintained.? They submitted that any other complaint regarding the manner in which the IPO made its credibility findings are quintessentially ones for the Tribunal to consider afresh on appeal.

59. They stated that in the event that the Tribunal issues a negative decision that the appellant is dissatisfied with, the remedy of judicial review will be open to him.

60. In the circumstances and for all the reasons offered, the State respondents submitted that the appellant has an adequate and more appropriate remedy available to him which he ought to exhaust by way of a statutory appeal to the Tribunal under Part 6 of the 2015 Act.

An Appeal to the Tribunal as an Effective Remedy under EU Law

61. The appellant placed considerable emphasis on the decision of the Court of Justice and High Court in MM v Minister for Justice.? In submitting that his complaints fell within the definition of the right to be heard, the appellant relied on para [87] of the decision of the Court of Justice that "[t]he right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely".? It was a matter for the national court to decide if the procedures involved were compatible with EU law. ?The decision in MM v Minister for Justice took place against an entirely different bifurcated system in which the decision maker on the issue of subsidiary protection was bound to follow the finding on the issue of refugee status where that reliance precluded the re-opening of adverse credibility findings.? The State respondents did not dispute that the right to be heard applies to the IPO's decision-making process in this case, that the right to be heard included an opportunity for a personal interview, for a careful and impartial examination of the claimant's case, or for a detailed statement of reasons.? Instead, they submitted that the issue is whether there was an effective remedy in the form of an appeal to the Tribunal.

62. Article 32(4) of the Procedures Directive provides that where new elements or findings arise following the preliminary examination which add to the likelihood of the applicant qualifying as a refugee, the application shall be further examined in conformity with Chapter II.? Chapter II, Article 4 of the Qualification Directive provides that Member States have a duty to assess the facts and circumstances of an application on an individual basis and in cooperation with the applicant, including a duty to consider the applicant's statements and documents as they relate to the country of origin and its applicable laws and regulations. ?I agree with the State respondents' submission that Part 4, s. 28 of the 2015 Act closely mirrors Article 4 of the Qualification Directive.

63. Part 6 of the 2015 Act is supplemented by the International Protection Act (Procedures and Periods for Appeals) Regulations, 2017 (SI No 116 of 2017) as amended.? These provisions together provide for a de novo oral hearing and a full or ex nunc appeal, which means the Tribunal has the power to request inquiries to be made by the Minister for Justice and to receive new evidence before it. ?The nature of these provisions is that in many situations, the documentation before the Tribunal will not be the same as that before the IPO.? From that perspective, the hearing before the Tribunal may be viewed as an inherently different one but yet it must be considered a fair procedure in the context of the international protection structure by the very fact that it may receive new evidence.? While the failure to consider a document at the first stage may be a breach of fair procedures because each organ must carry out its function fairly, that is only the starting point.? What must be considered is what is the effect of having an appeal on the breach of fair procedures.

64. Despite the appellant's reliance on MM v Minister for Justice, I find the decision to be of limited value to the present position.? At issue there was the procedure where there was no right of appeal to the Refugee Appeals Tribunal from the administrative decision of the Minister in respect of subsidiary protection.? That was compounded by the fact that in making the decision, the Minister did not engage in any examination of issues such as credibility but followed the previous findings.? There was a clear violation of the right to be heard in MM v Minister for Justice and the issue of the impact of an effective remedy on that situation did not arise in that case.

65. The requirement to have an effective remedy in respect of the taking of a decision on asylum is set out in the Procedures Directive.? Article 39(1)(a) thereof places an obligation on Member States to ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against a decision taken on their application for asylum.? Within the system of assessing international protection claims under the 2015 Act, applicants have an entitlement under that Directive to have an effective remedy against a decision taken by the IPO.? In X v The International Protection Appeals Tribunal, the Court of Justice looked at both the procedures before the IPO and the Tribunal.? While confirming that the duty of cooperation laid down in Article 4(1) of the Qualification Directive applied to the IPO and the Tribunal, the Court of Justice made important observations on the role and status of the Tribunal at EU level.

66. The Court of Justice viewed the 2015 Act provisions as requiring the Tribunal to carry out a full and ex nunc review of the decision of the IPO and ultimately to make binding recommendations.? The Tribunal has obligations to obtain and examine precise and up to date information, including a medico-legal report deemed relevant or necessary. Significantly, the Court of Justice went on hold that the Tribunal must be regarded as a court or tribunal of first instance.? The Court stated at para [63]:

"[T]he IPAT must be regarded as a court or tribunal of first instance, tasked with performing the judicial scrutiny function provided for in Article 39 of Directive 2005/85. It is in that capacity that it is required to carry out the full review referred to in paragraph 59 above, which entails that it is has the power to deliver a decision ex nunc on the basis of the elements produced before it, if necessary at its request, and that it may affirm or set aside, on the basis of those elements, a decision of the IPO and, where appropriate, make a binding recommendation that refugee status or subsidiary protection be granted. It should be added that it has not been claimed before the Court and that there is nothing in the file before it to suggest that the judicial scrutiny which the IPAT is thus required to carry out of decisions of the IPO rejecting an application for international protection does not satisfy the requirements of Article 39."

67. The Court of Justice considered the High Court to be a court of second instance responsible for carrying out a review of the decision of the Tribunal limited to the recognised role of the court in judicial review, and in the event of a finding of illegality, for the annulment of the decision and remittal of the case to the Tribunal.

68. At the hearing, the appellant placed significant reliance on HID and stressed that the effectiveness of the remedy depends on the administrative and judicial system of each Member State considered as a whole.? Judicial review, he submitted, is part of that system as acknowledged in X v The International Protection Appeals Tribunal, and that unlawful decision making at first instance cannot be excused and is subject to that judicial review process.? The emphasis placed by the appellant on considering the system as a whole does not quite lead to the outcome for which he agitates.? In HID, the complaint concerned the independence of the members of the Refugee Appeals Tribunal.? Although the Court of Justice considered that there were issues with the legislative provision for the removal from office of those members, that Court, having considered the system as a whole, said "it must be concluded that the criterion of independence is satisfied by the Irish system" which included the availability of judicial review of decisions of the Refugee Appeals Tribunal.

69. Under the present system, the Tribunal, at the level of EU law, provides an effective remedy.? It can hear and assess all evidence that the appellant wishes to present because the fact that it is a full and ex nunc appeal imposes a duty "to make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision under appeal" (Alheto).? An assessment of the procedural system with respect to claims for international protection demonstrates that the appellant has an effective remedy of appeal at EU level against his complaints regarding the failure to assess material evidence and also the failure to address the core claim.? While the Tribunal is not reviewing the IPO's decision for errors, it provides a system where those errors are addressed and corrected within its full assessment of the appellant's underlying claim for international protection.? Thus, both issues can be and will be addressed by the Tribunal.? Moreover, there is the availability of judicial review to remedy material, reviewable errors of law and fact made by the Tribunal.

70. The appellant's concern that illegal decision making cannot be excused at first instance is a valid one, but, at the level of his individual claim, his remedy must be before the Tribunal.? That is inherent in the importance of considering the scheme for assessing international protection applications as a whole.? The Tribunal provides, in accordance with EU law, an effective remedy in each individual case.? Their decisions are available on a database and will be well known to immigration law practitioners.

71. If it becomes apparent that there are persistent breaches of rights including to fair procedures, then this ought to become apparent from the decisions of the Tribunal.? Indeed, it may be correct for the Tribunal to point this out in a relevant decision or indeed in its Annual Reports.? It may, however, in some situations be appropriate to seek a direct judicial review remedy, including a declaration, to prevent persistent illegality on the part of the IPO/Minister.? The availability of judicial review in those circumstances does not alter the effectiveness of the remedy in EU law before the Tribunal for a breach in an individual case, but rather it provides a safety mechanism to ensure that the initial decision-making process is functioning in a fair and proper manner as required by EU law.? Taking a judicial review in relation to persistent breaches might properly be viewed as a claim that the structure of the international protection process was inherently ineffective and defective ab initio. ?In that situation it may be possible to argue that an appeal to the Tribunal is not an effective remedy because only the High Court's powers were sufficient to remedy those breaches (whether by certiorari, declaration or mandamus) and place the applicant back into an international protection system that as an institution is a fit and proper system of protection.? That kind of claim is far removed from the type of claim this appellant seeks to bring here.? The claimed defects in procedures are individual to his case and there is no suggestion that there have been persistent breaches of the type at issue in these proceedings by the IPO.

Judicial Review

72. In the judgment I delivered today in the case of Amariei, I addressed the origins of and rationale for the principle that where an adequate alternative remedy to judicial review exists, the court should exercise its discretion not to grant judicial review or, depending on the circumstances, to refuse leave to apply for judicial review.? I set out the following principles:

i. The default position is that a party should pursue a statutory appeal or review rather than initiate judicial review proceedings.

ii. The rationale for this principle is multifaceted:

a. To give effect to the legislative intent in the creation of alternative remedies;

b. There may be advantages to having an appeal over judicial review;

c. To safeguard judicial resources so that the courts remain available to provide speedy relief in other cases where intervention is required; and,

d. The implications for costs and/or for delay for both claimants and for the State and public bodies in applying for judicial review instead of using the alternative appellate machinery.

iii. The exercise of discretion to refuse to grant a remedy of judicial review which may otherwise be justified is tightly bounded by legal and constitutional considerations.? The High Court's judicial review power over administrative bodies and courts of limited jurisdiction acts as a safeguard to the rule of law.? The balancing of these important legal and constitutional considerations is central to the exercise of the discretion.

iv. In exercising discretion to refuse judicial review, a judge is bound by principles enunciated in the case law as to its application.

v. Cases where judicial review will be permitted are exceptions to the general rule.? An applicant may not have to exhaust an alternative remedy ** where it is not adequate or where there is a particular exigency in the interests of justice which requires judicial review to lie.

a. Statutory appeals to the courts, even those on points of law, give broad jurisdiction to the courts to review decisions and come within the default position.? The principal areas of exception to the general rule of excluding judicial review in those situations have been identified in the case law and are generally where the appeal will not permit the person aggrieved to adequately ventilate the basis of their complaint against the initial decision.??

b. Other statutory appeals likewise come within the default position and judicial review will only lie as an exception to that rule where the remedy is not adequate or where there is an exigency of justice that requires judicial review.

c. Circumstances which may come within the exception to the rule may be where the challenge is to the integrity and basic fairness of the proceedings.

vi. Where it is clear from an assessment of the principles and their application in existing precedents that a remedy is an adequate and alternative one, the facts and circumstances of the specific case will only rarely require that the court's discretion be exercised in the exigencies of justice in favour of the availability of judicial review.

vii. The onus of demonstrating that there is no adequate alternative remedy lies with the applicant.

viii. At the application for leave to apply for judicial review stage (whether heard ex parte or on notice), the following applies:

a. The court has an obligation to consider any possible alternative remedy at the appeal stage;

b. Order 84, rule 20(6) of the Rules of the Superior Courts permits the court to adjourn the application for leave until an appeal is determined or the time for appealing has expired;

c. The court's discretion to grant leave to apply for judicial review must be exercised in accordance with established principles regarding the exhaustion of alternative remedies;

d. Where there is an alternative remedy, an applicant for judicial review must satisfy the court that they have arguable grounds (or substantial grounds where the law so requires) to establish that they come within one of the exceptions to the general rule that the alternative remedy must be exhausted prior to judicial review; and,

e. The 'arguable grounds' or 'substantial grounds' standard will not be satisfied where it is clear that the discretion may only be exercised to refuse judicial review even when taking the applicant's case at its highest.

ix. If leave has been granted, it remains open to the respondent to raise the issue of alternative remedy either by way of an application to set aside leave or in the statement of opposition.

73. I will now address the effect that a breach of fair procedures may have on that general principle.? I use the word 'breach' to indicate that it is necessary to address whether the principle may apply even when a breach is found.? That is particularly relevant to the issue of an ex parte application for leave to apply for judicial review.

74. As the principles indicate, a decision to refuse leave to apply for judicial review can be made at the ex parte stage (G v Director of Public Prosecutions [1994] 1 IR 374).? The court must take the applicant's claim at its height.? Thus, even if the court was satisfied that there were arguable grounds (even substantial grounds where, as here, are required by statute) that there was a breach of fair procedures, as a matter of principle, the court should refuse leave where there is an alternative remedy capable of vindicating their position.? In Amariei, I refer to Attorney General v Davis [2018] 2 IR 357, [2018] IESC 27 where it was confirmed that a statutory appeal to a court can vindicate the position even with respect to a significant breach of procedures. ?As such a statutory appeal provides prima facie an adequate alternative remedy, it will be rare that an applicant will be able to demonstrate that the exigencies of justice require the remedy of judicial review.? How may that apply to an administrative appeal?

An Effective Remedy or An Alternative Remedy?

75. A peculiarity arising in this case is that the purported alternative remedy, an appeal to the Tribunal, is an effective remedy to vindicate the appellant's right as a matter of EU law.? The subject matter of the appellant's claim, the right to international protection, is governed by EU law as implemented by the relevant provisions of the 2015 Act.? That raises the question of when is an effective remedy not an adequate alternative remedy?

76. The State has provided an effective national procedural remedy.? The principle of equivalence in EU law requires that the remedies available to ensure compliance with national law must be available in the same way to ensure compliance with EU law.? It is not necessary in the present case to address whether the State could provide for EU compliant effective remedies without the possibility of judicial review because in this case, as the appellant stresses, national legislation envisages the availability of judicial review; s. 5 of Illegal Immigrants (Trafficking) Act, 2000.

77. Therefore, it is necessary to address, as a matter of national law, whether judicial review lies to address the breaches of fair procedures that, taken at their height, arise in this case.? Such an examination must, however, take into account that the Tribunal provides an alternative (and effective) remedy for the vindication of the appellant's underlying claim; the Tribunal must examine all the matters submitted by the appellant and is obliged to comply with the procedural requirements. ?That remedy is forward looking (ex nunc) and does not look back at the errors in procedure in the same way as occurs in judicial review.? What the appellant submitted was that judicial review would give him a remedy which would restore him to the position of having two fair hearings.

A Right to Two Fair Hearings?

78. In Amariei, I discussed how prior to the decision in Abenglen there was no consensus that judicial review would lie for every breach of fair procedures at first instance (see The State (Stanbridge) v Mahon [1979] IR 214).? Subsequent cases, in the immigration context, some of which are referred to above, do not support the absolute proposition that one has an entitlement to two fair hearings and thus an appeal is not a remedy for a breach of fair procedures at the initial stage. ?For example, this Court in Sweeney v Judge Brophy [1993] 2 IR 202 took the "opportunity of emphasising that certiorari is not appropriate to a routine mishap which may befall any trial; the correct remedy in that circumstance is by way of appeal." ?Indeed, the appellant in this case did not submit that every breach of natural justice required a judicial review remedy, but submitted, relying on the decision in Stefan v Minister for Justice, that the line was crossed in this case.? In EMI, while Clarke J. referred to cases (as exceptions to the general rule) where the allegation of the aggrieved party was that they were deprived of a proper consideration of the issues such that being confined to an appeal would deprive them of their entitlement to two hearings, his view was that the entitlement was still contingent on a consideration of all the circumstances.

79. Prior to looking in some detail at Stefan v Minister for Justice, it may be helpful to refer to some of the decisions regarding the provision under Article 40.4.2? of the Constitution which mandates that, following an enquiry, the High Court must release a person unless satisfied they are being detained "in accordance with the law".? In Roche v Governor of Cloverhill Prison [2014] IESC 53, this Court (Charleton J.) reviewed the case law and confirmed that the Article 40 jurisdiction of the High Court did not lie for every error that may have been made by a judge at trial.? The appellate structures were in place to deal with commonplace situations and these fell outside the High Court's obligations under Article 40 of the Constitution.

80. Charleton J. cited the well-known principle in The State (McDonagh) v Frawley [1978] IR 131 that liberty could only be deprived "save in accordance with law" does not mean a person must be released under Article 40 merely because some defect or illegality attaches to the detention: "The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law."? Legal error, impropriety, or even inadvertently exceeding jurisdiction was insufficient for habeas corpus.? The phrases 'fundamental denial of justice', 'a fundamental flaw' or 'wanting in the fundamental legal attributes which under the Constitution should attach to the detention' have been used in other decisions (FX v Clinical Director of Central Mental Hospital [2014] 1 IR 280, [2014] IESC 1 and The State (Royle) v Kelly [1974] IR 259).

81. Charleton J. addressed the decision in Cirpaci v Governor of Mountjoy Prison [2014] 2 IR 471, ** [2014] IEHC 76.? In that case, the High Court ordered the release of the applicant where he had pleaded guilty to an offence but had not been told of his right to a jury pursuant to Article 38 of the Constitution.? In that situation, there was a fundamental want of jurisdiction in the court before which the plea was entered.? That situation can be compared with the judicial review proceedings in The State (Stanbridge) v Mahon where giving incorrect details of previous convictions was held to be an error that could be corrected in the appeal.

82. Henchy J. observed in The State (Royle) v Kelly that Article 40.4.2? was a version of the rule of habeas corpus which is to be found in many Constitutions and the expression 'in accordance with the law' had an ancestry in the common law going back through the Petition of Right to Magna Carta. ?Article 40.4.1? can also be described as giving expression to the rule of law by ensuring that there is a constitutional mandate to direct the release of those persons who are not detained in accordance with law.

83. Although these judgments are directed to the specific article dealing with habeas corpus in the Constitution, the general principles have resonance in judicial review.? Rule of law considerations are also at issue in the supervisory jurisdiction of administrative bodies and courts of limited jurisdiction.? If the rule of law in respect of liberty of the person can properly be addressed within the appellate structures established by law, it is difficult to see a compelling reason as to why rule of law concerns cannot be addressed within the appellate structure established by law in respect of decisions not affecting liberty, as in this case.? A similar view was taken in respect of judicial review and the right to trial in due course of law.? In Sweeney v Judge Brophy, while confirming that an appeal procedure was the correct manner in which to deal with routine mishaps at trial, this Court held that certiorari was available "where the proceedings are so fundamentally flawed as to deprive an accused of a trial in due course of law." ?I now propose to explore the case law on judicial review and fair procedures and assess whether the concepts of 'fundamental flaw' or 'fundamental denial of justice' are also applicable when judicial review is sought to remedy breaches of fair procedures in administrative decision making.

Stefan v Minister for Justice and Fair Procedures

84. I discuss in Amariei the background to Stefan v Minister for Justice.? It concerned the non-statutory, purely administrative procedure in place for assessing asylum applications. ?I concluded that it would be the antithesis of an adequate remedy if the interests or requirements of justice required judicial review of the decision in that procedure.? The assessment of whether a remedy is adequate, naturally depends on all the circumstances of the case.? I repeat however that those circumstances must be considered against the backdrop of the multifaceted rationale outlined in Amariei for the requirement to exhaust alternative remedies and, in light of the principles outlined in case law as to what is an adequate alternative remedy. ?What I now address is the effect of those principles and rationale on the possibility of an adequate alternative remedy by way of a full appeal where the claim is one of fair procedures.

85. This Court in Stefan v Minister for Justice concluded: "The applicant is entitled to a primary decision in accordance with fair procedures and an appeal from that decision. A fair appeal does not cure an unfair hearing." ?This statement, while appearing broad and absolutist, does not reflect the overall nature of the decision.? Denham J. had earlier stated that even where the court determined that an order of certiorari may be granted, the court retains a discretion in all the circumstances of the case as to whether the order should issue. ?In what is the ratio of the decision, Denham J. stated:

"In considering all the circumstances, matters including the existence of an alternative remedy, the conduct of the applicant, the merits of the application, the consequences to the applicant if an order of certiorari is not granted and the degree of fairness of the procedures, should be weighed by the court in determining whether certiorari is the appropriate remedy to attain a just result."

86. Subsequent cases in the asylum sphere have recognised that there is no bright line. ? In AE v Chief International Protection Officer, relied on by the appellant, Phelan J., in her analysis of the process at first instance under the 2015 Act, stated that while the duty to assess the application under Part 4 of the 2015 Act falls on both the IPO and the Tribunal, the examination function rests squarely with the IPO.? A failure of examination at first instance may be cured on appeal by the Tribunal, but whether this constitutes an adequate or effective remedy depends on the nature of the identified flaw.? The High Court concluded its assessment of the law stating that:

"[T]he answer as to which side of the line a case falls may depend on ... 'the degree of fairness of procedures' or 'the degree to which fairness of the hearing was compromised' ...? determined by an assessment on the facts of a given case of whether the process has broken down in a manner which draws into question the overall reliability or trustworthiness of a decision to be taken on the fundamentally important issue of an entitlement to international protection."

87. The case of AK v The Refugee Applications Commissioner (Supreme Court, Murray CJ. ex tempore, 28 January 2009) distinguished Stefan v Minister for Justice on the basis that the claim to a breach of fair procedures due to irrationality constituted an attack on the merits of the decision.? This Court held that an appeal was the appropriate remedy where the issue raised by the applicant "principally (but not exclusively)" related to the quality of the decision.? The other cases set out above referred to by both parties relating to discretion and breach of fair procedures are indicative of judicial engagement with the ratio of Stefan v Minister for Justice in terms of balancing the multiple factors set out therein.? The reference in EMI by Clarke J. to cases (as exceptions to the general rule) involving a breach of fair procedures leading to a deprivation of the "entitlement to two hearings" does not settle the question of what "circumstances" amount to such a deprivation.? From the principles set out in Amariei and from the discussion above on the case law in respect of the availability of the remedy under Article 40.4.2? of the Constitution, it is possible to formulate an approach which accords with principle and which provides greater certainty to applicants, the State, and to the judiciary, in respect of the discretion to refuse judicial review which ought to be exercised when there is an available alternative remedy.

88. Those principles establish that the default position is that the alternative remedy must be exhausted.? C ases where judicial review will be permitted are exceptions to the general rule and will arise where the alternative remedy is not adequate or there is a particular exigency in the interests of justice which requires judicial review to lie.

89. In this case the proposed alternative remedy - the appeal to the Tribunal - is perfectly adequate to deal with the appellant's underlying claim for international protection.? It could only be considered inadequate if one views the remedy as being a remedy which must concern the appellant's procedural complaints. ?Yet, even in Stefan v Minister for Justice, it is established that not all breaches of fair procedures will require a remedy by way of judicial review.? In Koczan v Financial Services Ombudsman [2010] IEHC 407, Hogan J. referred to complaints relating to the integrity or basic fairness of the decision-making process which may require judicial review (the latter providing the decision-maker with the opportunity to cross-examine or hear oral evidence which may not be available in all statutory appeals).? Other decisions, such as Attorney General v Davis have recognised that a statutory appeal may be an adequate remedy for even significant procedural errors.

Judicial Review Unavailable unless there is a Fundamental Denial of Justice

90. The difference in treatment between complaints of fair procedures which permit of judicial review and those which do not, can logically be viewed as reflecting judicial review functioning to provide a remedy which is adequate to deal with the appellant's underlying claim.? This is because the focus of judicial review is to address barriers to the disposition of an applicant's underlying claim in accordance with law.? The default position is that judicial review is not available where there are adequate alternative remedies which address the relevant issues.? Thus, for example, where a statutory appeal on a point of law can adequately address the issues raised in the application for judicial review, then the default position that judicial review is unavailable will apply. ?That is an example of the provision of an entire structure, including an appellate system, by the Oireachtas which is adequate to meet an applicant's claim (or to defend their interests).? Where the complaint is of a breach of fair procedures at an initial stage, the same assessment applies.? What is to be assessed is the functioning/ability of the entire system to provide a process which guarantees an applicant the right to have their claim determined in accordance with natural and constitutional justice. ?It is not mere coincidence that this is similar to what was said by the Court of Justice in HID; what is of central importance is that a claimant has access to a functioning system that is capable of ensuring that their case is decided after a full and fair consideration of the facts and law.

91. In R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners [2017] 4 WLR 213, [2017] EWCA Civ 1716, the Court of Appeal of England and Wales refused a claim for judicial review of a decision of the respondents on grounds of fair procedures because of the existence of alternative remedies within the taxing statutes including an appeal to a First Tier Tribunal.? In doing so, Sales LJ., relying on In re Preston [1985] AC 835 ** said that the judicial review process should not be allowed to supplant the normal statutory procedure "unless the circumstances are exceptional and involve an abuse of power of a serious character".? The abuse of power involved is something that must go to fundamental rule of law standards.? Whether one frames the issue as an abuse of power or a fundamental denial of justice as the Article 40.4 decisions indicate, it is only where the rule of law is undermined by the earlier decision that judicial review will provide the remedy even where there is an adequate alternative remedy for the underlying claim.?

92. This perspective brings coherence to the test of when a remedy is adequate or when the exigencies of justice will require judicial review.? An appeal is a full one when it exists for the very purpose of ensuring that mishaps or illegalities whether they be of procedure or of fact/law can be rectified.? Where a breach of fair procedures is claimed in respect of a decision given at first instance for which there is an appeal capable of remedying that breach by providing the fairness missing at the earlier stage, it is only when the breach is such that there is a default of fundamental requirements, or some kind of fundamental denial of justice or a fundamental flaw in the decision-making process, that the appeal does not provide an adequate remedy.? Those phrases are chosen deliberately.? They do not reflect 'degrees of unfairness'; they indicate objectively identifiable situations where the initial 'hearing' may not have amounted to a hearing at all, or where a fundamental requirement has been ignored.? A complete denial of rights will amount to a fundamental denial of justice such that rule of law considerations will require, exceptional to the general rule, that judicial review will be available despite the existence of a statutory appeal.

93. It is apparent from this analysis and that carried out in Amariei that the dicta in Stefan v Minister for Justice that "[t] he applicant is entitled to a primary decision in accordance with fair procedures and an appeal from that decision ... A fair appeal does not cure an unfair hearing" taken in isolation, did not and does not represent the position at law.? Even at the time the judgment was delivered, there were situations where fair procedures may have been breached at the initial stage yet judicial review did not lie to cure the defective process (see The State (Stanbridge) v Mahon).? Having regard to the requirement that it is only where there is a fundamental denial of justice that judicial review will lie in respect of a first instance decision, I am satisfied that future reliance on the above dicta is apt to mislead. ???????

94. The cases where those types of fundamental flaws arise will be exceptional and rare.? In the case of an application for international protection, ignoring the requirement to have a personal interview carried out with the applicant or refusing to engage with or hear from the applicant as to any evidence or submissions at all would be a fundamental denial of justice.? In that context, there would have been no provision at all of a functioning first instance system of international protection in accordance with law.

The Application of these Principles to this Appeal

95. In this appeal, the claim is that the exceptionally poor quality of decision making in respect of the failure to assess material evidence previously submitted and the failure to make a decision on his core claim were illegalities that amounted to grave breaches of fair procedures. ?Taking those complaints at their highest, they are indeed concerning.? They are not, however, in the absence of any extra context, indicative of a failure at an institutional level to provide a functioning system in which an application for international protection may be adjudicated upon. ?They reflect a situation of individual mishap/defect/illegality for which the remedy of the appeal to the Tribunal is an adequate alternative.? They do not reach the type of fundamental denial of justice that would require, despite the otherwise adequate remedy of an appeal to the Tribunal, that this Court grant leave to apply for judicial review in the exigency of justice.

96. As I have stated above when discussing the effectiveness of the appeal to the Tribunal as a remedy, the situation would be different if there was evidence of persistent illegality or of a breach of natural and constitutional justice at the level of the IPO, such that the structure of the international protection process was inherently ineffective and defective ab initio.? Only then might judicial review be the proper remedy to secure the entitlement to have one's claim adjudicated in a functioning system which applies the law.? An individual breach (or even a series of individual breaches) is not evidence that the system has failed; it is merely evidence that the system did not work in that particular case.? The remedy for such failures of the IPO in individual cases is the fully effective alternative remedy to the Tribunal.

Conclusion

97. The requirement to exhaust an adequate alternative remedy is the default position in any application for judicial review.? That default position applies even to breaches of natural and constitutional justice unless these breaches amount to a fundamental denial of justice such that the hearing cannot be said to be a hearing at all or where a fundamental requirement has been ignored.? Such situations will be exceptional and rare.?

98. In the present case, even taking the appellant's claims at their highest, the breaches of fair procedures do not exhibit such a fundamental denial of justice such that the exigency of justice would require the grant of an order of certiorari of the IPO decision.? The impugned failures reflect a situation of individual mishap/defect/illegality for which the remedy of the appeal to the Tribunal is an adequate alternative. ?The appellant has therefore not satisfied the Court that there are substantial (or indeed arguable) grounds for granting leave to apply for judicial review.

99. This Court has a discretion under O. 84, r. 20(6) to adjourn the application until such time as the appeal has been determined.? In the circumstances of this case, nothing would be gained from such an adjournment.? The appellant will have his case fully determined by the Tribunal and the resulting decision will not be dependent on anything that has occurred before the IPO.

100. I would therefore dismiss this appeal.

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