IESC 23 — IESC 23 — Supreme Court

AN CHÚIRT UACHTARACH THE SUPREME COURT

[2026] IESC 23 Supreme Court Record No.: S:AP:IE:2025:000091 High Court Record No.: 2025/689JR

O’Donnell CJ. Charleton J. Woulfe J. Murray J. Donnelly J.

Between/

AB

Appellant

AND

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 25th 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.

1 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

2 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.

3 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

4 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:

5 “(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;

6 …

(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

7 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”)

8 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

9 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 (Siobhán 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

10 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

11 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

12 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

13 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.

14 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

15 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

16 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.

17 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.”

18 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.

19 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”.

20 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.

21 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

22 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

23 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

24 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.

25 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

26 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.

27 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:

28 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

29 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;

30 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

31 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;

32 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

33 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

34 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

35 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

36 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.

37 88. Those principles establish that the default position is that the alternative remedy must be

exhausted. Cases 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

38 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

39 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

40 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.

41 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.

42