High Court of Ireland Decisions

THE HIGH COURT

[2025] IEHC 118

[Record No. 2023/1084JR]

BETWEEN

MM

APPLICANT

AND

 

THE INTERNATIONAL PROTECTION OFFICE, IRELAND

 AND

THE ATTORNEY GENERAL

 

RESPONDENTS

 

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

Introduction.

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

 

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

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

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

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

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

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

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

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

 

The Applicant's Story.

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

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

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

Conclusions.

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

14.              The court accepts that in some rare and exceptional cases it will be appropriate for a party to proceed to challenge a decision at first instance, notwithstanding that there may be an appeal provided for under the relevant statutory code. However, this will only arise where the hearing at first instance was so deficient, or so unfair, that it cannot be said that there was any proper consideration of a material issue in the case, such that to force a disappointed party to proceed by way of an appeal would, in effect, mean that he or she would only get one decision on that issue, being the decision on appeal.

15.              In argument at the bar, counsel for the applicant relied on the decision in Stefan v Minister for Justice Equality and Law Reform [2001] 4 IR 203. The court has considered the decision in that case. It is a case that stands on its own particular facts. In that case the Supreme Court determined that the applicant had been denied a fair hearing at first instance, in circumstances where the English translation of her questionnaire did not include the applicant's full answer to a particular question, which had asked in essence "why are you seeking asylum?". In these circumstances where a material piece of evidence in relation to the applicant's reason for seeking asylum had not been before the decision maker at first instance and therefore could not have been considered by that decision maker, it was held that in those circumstances it was appropriate that judicial review proceedings could be brought and relief could be given striking down the decision at first instance.

16.              In the circumstances of that case, where a significant portion of evidence in relation to an issue that was before the decision maker had not been actually put before the decision maker, if the applicant had been forced to proceed by way of statutory appeal, that would have meant that a consideration of that relevant evidence would only have occurred on one occasion, namely on the appeal. It was in those very particular circumstances, that the court directed that it was appropriate to make the orders sought by the applicant striking down the decision at first instance, rather than obliging her to proceed by way of a statutory appeal in the ordinary way.

 

17.              In the Stefan case it was clear that the applicant had never received a proper hearing at first instance, because evidence which was central to her claim, had not been put before the decision maker. The court is satisfied that the facts in the Stefan case are entirely distinguishable from the circumstances of the present case. For the reasons that will appear presently, the court is satisfied that in this case, the applicant was not denied a fair hearing at first instance; nor can it plausibly be argued that he was denied a decision on any material part of his claim, such that it would be appropriate to permit him to challenge the first instance decision of the first respondent by way of judicial review, rather than oblige him to proceed by way of a statutory appeal to IPAT in the usual way.

18.              The applicant has protected his interests in this regard by lodging a notice of appeal with IPAT. In my view it is inappropriate for a party to seek to challenge a first instance decision, while at the same time reserving his right to proceed by way of a statutory appeal, should his judicial review challenge be unsuccessful. If parties are permitted to do that, the asylum process will become much more cumbersome, with parties seeking to challenge first instance decisions by means of judicial review proceedings, while maintaining their right to appeal the same decision. It is not in the interests of justice to allow that to happen, when the Oireachtas has provided an alternative remedy in the form of a statutory appeal.

19.              I hold that the applicant is not entitled to the relief sought in his notice of motion due to the fact that he has a statutory appeal to IPAT, which is a full de novo hearing, in which he can raise whatever matters he wishes in support of his claim for asylum or international protection; and he can produce whatever additional evidence he may feel is appropriate. Accordingly, I refuse to grant the relief sought on the basis that the applicant has an adequate alternative remedy.

20.              Notwithstanding that conclusion, I will deal with the grounds of challenge to the decision of the first respondent as put forward on behalf of the applicant. Turning to the applicant's main ground of challenge to the decision of the first respondent, I find that while the first respondent did not specifically consider whether the applicant would face persecution or a real risk of serious harm if he was returned to Somalia due to his membership of the Gabooye clan; that was due to the fact that the applicant never made that case.

21.              When one reads the entirety of the documentation in this case, it is abundantly clear that the applicant's case was that he would face the risk of being killed or being seriously harmed by Al Shabaab if he were returned to Somalia. He made that very clear from the beginning in his application form and right through his further documentation in his answers to the questionnaire and in his answers during interview.

22.              It will suffice to refer to some examples in this regard: in his application form, which was completed on 15 February 2022, the applicant stated the following in relation to his reasons for claiming international protection in Ireland: "The reason as follows, Al Shabaab militia forced me to be member of them, killed my father". In his questionnaire, which was completed on 29 April 2022, he referred to the fact that he was from the Gabooye clan and that they were subject to racial discrimination and exclusion. He then proceeded to provide lengthy details of his claim for international protection, which only related to the claimed threat from Al Shabaab.

23.              In the questionnaire at p.14, the applicant was asked what he feared would happen to him if he were returned to his country of origin, to which he replied "I am afraid that Al Shabaab will kill me if I go back to my country". Later in the same questionnaire he was asked to provide details of any hostile acts or behaviour against him, to which he replied that it was "the Al Shabaab group" who had carried out the acts that he complained of. He was further asked to give details of what made him decide to leave his country of origin; to which he replied "I was compelled by the problems they caused me and my family. They wanted to train me as a member of Al Shabaab group."

24.              In his interview, which was held on 6 July 2023, the applicant gave the account that he had outlined in relation to his abduction and being brought to the training camp run by Al Shabaab. He stated in the interview that he feared that he would be killed if he were returned to Somalia. When asked who would do that to him, he replied "Al Shabaab will kill me in the same way that they killed my father and brother." When asked why they would do that, he replied that they would kill him because they wanted him to join their organisation, but he would not do so. The court is satisfied from reading the entirety of the applicant's application for asylum or international protection, that by far his primary concern for his safety emanated from his fear of harm at the hands of Al Shabaab.

25.              While it is correct to say that the applicant made some oblique references to his facing discrimination due to his membership of the Gabooye clan, his assertions in this regard referred only to the possibility of him facing discrimination due to his membership of that clan.

26.              In terms of specifics, he only mentioned that when he was at school, other boys referred to each other as "cousin", whereas he and his brother were not addressed in that way due to their membership of the Gabooye clan. The applicant did not assert that he would face a risk of persecution or serious harm due to his membership of that clan.

27.              Accordingly, I hold that while the first respondent found that the applicant was a member of the Gabooye clan, but did not consider whether he would face persecution or a risk of serious harm on that account, his decision was not deficient in that regard, as that case had not been made by the applicant. A decision maker cannot be expected to consider and determine issues that are not raised by an applicant.

28.              Given my finding on the extent of the material claim made by the applicant, the point concerning a failure on the part of the first respondent to obtain and consider up-to-date and relevant COI, and in particular his alleged failure to consider the UNHCR report of September 2022, falls away.

29.              Even if it did not fall away, I am satisfied that there is no substance in this submission for the following reasons: first, the decision maker considered a number of relevant pieces of COI which were set out at the back of his decision. Some of these postdated the UNHCR report on which the applicant seeks to rely. Secondly, the applicant took the opportunity to furnish documentation through his solicitor on 2 September 2022. He, or his lawyers, did not see fit to make reference to the UNHCR report at that time. In fairness, they may not have known that the first respondent would not refer to this report, but they did not take the opportunity to highlight it as being relevant to a material part of the applicant's claim to international protection.

30.              Thirdly, the UNHCR report itself does not provide unequivocal support for the proposition that a member of the Gabooye clan is likely to face persecution or a risk of serious harm in Somalia. When one reads the relevant portion of that report, it states that according to one scholar, members of the Gabooye clan, like other occupational specialists in Africa, suffer a range of restrictions regarding economic, social and political exchange with the dominant groups they live with. The report goes on to state that members of that clan are economically disadvantaged; they continue to be confined to their traditional low paying occupations and as a whole, are unable to achieve upward social or economic mobility due to societal discrimination and lack of access to resources. It states that children of occupational caste groups suffered bullying at school.

31.              The report goes on in its summary of the overall position to state that members of the clan, along with other minority groups, may, depending on the individual circumstances of the case, be in need of international refugee protection on the basis of a well-founded fear of persecution at the hands of state or nonstate actors for reasons of their nationality or ethnicity/race, or for other relevant convention grounds. The report goes on to state that relevant considerations to assess the well-foundedness of the fear of persecution, include the relative power position of the ethnic group in the applicant's area of origin and/or settlement, the history of inter-ethnic relations in that area, and the relative enfranchisement of that specific minority group.

32.              While that report may have supported the applicant's contention if he had made the case that he was likely to suffer persecution or a risk of harm due to his membership of the Gabooye clan in the part of Somalia whence he came. However, he did not make that case. I hold that the UNHCR report referred to is not relevant COI that the first respondent ought to have had regard to in respect of a claim that was not actually articulated by the applicant.

33.              Even if I am wrong in all of that, this is an issue that can be raised de novo by the applicant on his appeal to IPAT. It is exactly the type of issue that can be adequately argued and determined on an appeal.

34.              I can deal with the remaining grounds of challenge in relatively brief terms. The applicant submitted that the finding by the first respondent that he was not from Qoryooley was untenable because he had not been asked the usual questions about his place of origin. It was submitted that in order for that finding to have been correctly made, the applicant should have been asked questions such as: what was the geographical layout of the village; whether a river runs through the village; the name of the river; to name any hospitals or other well-known landmarks in the area.

35.              The first respondent had found that the applicant's lack of awareness of the status of the conflict and the balance of power in the village at the time that he claims that the events relevant to him had occurred, undermined his claim to be from that village. Thus it was not considered credible that he was from that village. Additionally, there was no documentary evidence submitted by the applicant to support his assertion that he lived in Qoryooley. The court is satisfied that in light of these findings, the first respondent was entitled to reach the conclusion that the applicant was not from that village.

36.              However, the decision did not stop there, because the decision maker went on to consider whether, if it was assumed that the applicant came from that area, he would be likely to suffer serious harm by means of indiscriminate violence. Accordingly, the applicant has no arguable basis for complaining about the finding that he did not come from his village, because the decision maker made a decision on the assumption that he was from that area.

37.              Insofar as the first respondent held that the applicant was not at risk of serious harm in the form of indiscriminate violence, it is clear that the first respondent considered relevant COI and came to the conclusion that there was no such risk to the applicant. The first respondent was entitled to reach that decision. It is well settled that the weight to be accorded to COI is a matter for the decision maker: LTE v Minister for Justice [2022] IEHC 504 at paras 73 and 145. If the applicant is dissatisfied with the finding of the first respondent in this regard, he can reargue this issue in his appeal to IPAT.

38.              Finally, it is submitted that the decision maker had acted erroneously, when he had reached the conclusion that it was not considered credible that in a period of five years the only people recruited to Al Shabaab from the school were the applicant and his brother. It was submitted that that conclusion was based on an erroneous interpretation of the answers which had been given by the applicant in his interview, in particular to questions 43 and 44. Those questions and answers were in the following terms:

"Q 43. you have told me that your teacher was trying to recruit you for Al Shabaab. Had other students been recruited?

A. I don't know. The other students belonged to the upper castes and their families were wealthy. The teacher targeted us as we belonged to the lower caste.

Q 44. Your teacher had been teaching there for five years, and the first people he tried to recruit were you and your brother?

A. No, there were other people too. But he approached me and my brother privately. He was scared if he approached people publicly people would know about his affiliation."

39.              While it may be arguable that the first respondent misconstrued the answers given by the applicant, if that was erroneous, that was an error made by the first respondent within jurisdiction. An appeal is provided to correct such errors. That is the forum in which to pursue that contention. It is not a ground on which the decision could be struck down in judicial review proceedings.

40.              For the reasons set out herein, I refuse the reliefs sought by the applicant in his notice of motion and in his statement of grounds. I refuse to set aside the decision of the first respondent made on 15 August 2023, or the decision refusing the applicant leave to remain in the State, made on 22 August 2023.

41.              As this decision is being delivered electronically, the parties will have two weeks within which to furnish brief written submissions on the terms of the final order and on costs, and whether the parties wish the judgment to be anonymised prior to publication.

42.              The matter will be listed for mention at 10.30 hours on 26 February 2025 for the purpose of making final orders.