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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.H.H. v Minister for Justice & Anor (Approved) [2025] IEHC 298 (23 May 2025)
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Cite as: [2025] IEHC 298

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HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 298

                                                                                                                     RECORD NO. 2025/426/JR

BETWEEN

 

 

A.H.H.

 

 APPLICANT                                                  

 

AND

 

 

THE MINISTER FOR JUSTICE AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

 

RESPONDENTS

 

RULING of Ms. Justice Siobhán Phelan, delivered on the 23rd of May, 2025.

 

INTRODUCTION

1.      On this application the Applicant seeks leave to challenge the Minister's refusal under Article 17(1) of Regulation (EU) No. 604/2013 (the "Dublin III Regulation") dated the 25th of February, 2025, refusing his request for the exercise of discretion to determine his application for international protection in Ireland and affirming that he will be transferred to Austria.  He also seeks leave to challenge the decision of the International Protection Appeals Tribunal (hereinafter "IPAT") made under the Dublin III Regulation and European Union (Dublin System) Regulations 2018, S.1./62/2018 dated the 23rd of January, 2025, which determined that he should be transferred to Austria for the assessment of his application for international protection. 

 

2.      The leave application was moved before me on the 19th of May, 2025, in the ex parte leave list.  I held over my ruling to today to afford an opportunity to better consider the papers.

 

BACKGROUND

3.      The Applicant is a 20-year-old Somali national who sought international protection on the 30th of April, 2023, citing threats from Al-Shabaab and his membership in the Madhiban clan. He was interviewed under s.15 of the International Protection Act, 2015 (hereinafter "the 2015 Act") on the 3rd of May, 2023.  A Eurodac hit revealed previous applications in made in Austria (13/11/2022) and Greece (14/12/2021).

 

4.      Greece rejected Ireland's take-back request on the 8th of June, 2023, but Austria accepted it on the 13th of June, 2023 and the Applicant was informed of this decision on the 26th of June, 2023. Objecting to his transfer, the Applicant argued that Greece's decision was unlawful as he should have been processed as an unaccompanied minor and expressed fears of detention and lack of accommodation in Austria.

 

5.      On the 24th of August, 2023, the IPO confirmed Austria's responsibility for his application.  The Applicant appealed to the IPAT and submitted medical evidence.  Written submissions dated the 10th of February, 2024, in which reference was made to the Applicant's experiences in Austria, Country of Origin Information (hereinafter "COI") and case-law were submitted in support of his appeal. 

 

6.      Further correspondence was sent by the Applicant's solicitor to the Minister on the 19th of February, 2024, addressing more fully the treatment of the Applicant in Greece as an unaccompanied minor and the Minister was requested to acknowledge the Applicant's vulnerability by exercising a discretion under Article 17 of the Dublin Regulations in setting aside a transfer decision.  In this letter the Applicant referred further to the pending appeal before IPAT and the matters relied upon in that appeal.  A letter in very similar terms was written on the 22nd of February, 2024. 

 

7.      According to the written submissions filed in support of this leave application, an application under Article 17 of the Dublin III Regulation was submitted on the 4th of June, 2024, asserting a risk of refoulement and breach of his Article 8 ECHR rights due to mental health.  This application does not appear as an exhibit to the affidavits before me.

 

8.      Again, according to the written submissions, on the 13th June 2024, an Officer of the Minister for Justice decided not to exercise discretion under Article 17, finding no humanitarian grounds.  It is said that the decision acknowledged the Applicant was a "victim of horrendous trauma" who required ongoing treatment but found no violation of Article 3 ECHR/Article 4 CFR in a transfer to Austria. Again, this earlier decision has been omitted from the papers before me, although it would appear to be a necessary exhibit.

 

9.      Additional correspondence was addressed to the Minister on the 24th of July, 2024, forwarding a medical report dated the 10th of July, 2024 and placing emphasis on extracts from that report.  The response to this correspondence is not exhibited, although it is clearly material evidence.

 

10.  At the IPAT hearing on 12th September 2024, the Applicant is noted to have expressed fears of deportation to Somalia and homelessness in Austria.  The Applicant also recounted his experiences living in tented accommodation in Austria while his protection application was processed and leaving the camp and subsequently Austria when it learned that it was the intention of the Austrian authorities to return him to Greece.

 

11.  In a decision dated the 23rd of January, 2025, the IPAT addressed in some considerable detail the question of risk to the Applicant on transfer to Austria for the further processing of his asylum claim.  Having considered COI in respect of Austria, the Applicant's own account of his experiences in Austria and the medico-legal report of a Dr. Giller dated the 10th of July, 2024, which was assessed in the light of principles identified by Hyland J. in RG v. IPAT & Ors [2023] IEHC 742 and other relevant case-law, the IPAT decided that the Applicant had not demonstrated that his transfer to Austria would result in a real and proven risk of a significant and permanent deterioration in his health, including a risk to his life and affirmed the transfer decision.

 

12.  By letter dated the 21st of February, 2025, the Applicant's solicitor again wrote to the Minister asking him to exercise his discretion to examine the Applicant's application pursuant to Article 17 of the Dublin III Regulation due to "recent additional evidence of Mr. X's vulnerability".  The letter appended further medical evidence in the form of a note from one Dr. Visser dated the 4th of February, 2025, outlining that the Applicant had suicidal ideation and was suffering from anxiety and depression.  In her letter, the Applicant's solicitor set out that suicidal thoughts were brought on by the decision to transfer the Applicant, however, this is not stated in the letter itself.

 

13.  In a decision letter dated the 25th of February, 2025, an Officer of the Minister wrote to the Applicant and his solicitor with the Decision of the Minister in regard to the exercise of discretion in accordance with Article 17(1) of Regulation EU 604/2013.  The decision is made following a review of the file on foot of the Applicant's solicitor's letter dated the 21st of February, 2025.  Referring to the application as a "third request", it is noted that the papers before me do not contain the Minister's decision on the two earlier requests, although it is apparent that there was at least one and likely two such decisions on foot of the earlier requests made.

 

14.  The Decision issuing on the third request was detailed, running to some 18 pages.  The Applicant and his solicitor were advised that the Minister for Justice, Home Affairs and Migration had decided not to exercise his discretion to permit the claim for international protection to be determined in this jurisdiction.  In some detail, it was explained that the Minister was satisfied that the materials submitted did not disclose any humanitarian or compassionate ground such that he would exercise discretion under Article 17(1) of Regulation (EU) No. 604/2013.  The Minister remained satisfied that transfer to the responsible Member State, Austria, should proceed.  

 

15.  It was explained that this decision was reached based on all the representations made in the case and on the entirety of the information available to Minister and contained on file.  It was explained in some detail why the Minister did not accept the arguments made that transferring the Applicant to Austria would violate his fundamental human rights.  

 

16.  The decision proceeded to address access to healthcare in Austria in light to the medical evidence which had been presented and the caselaw of both the ECHR and the ECJ, explaining on the basis of the assessment set out in the decision why it was not considered to be established that there were substantial grounds and/or a real risk that he would suffer a serious, rapid and irreversible decline in the state of his health, resulting in intense suffering or a significant reduction in your life expectancy were he transferred to Austria.  It was stated:

 

 

"The Minister has come to this conclusion based on all of the information available to him and having considered the requisite legal threshold that must be met before a decision to transfer may amount to a breach of your fundamental rights, as established by the Paposhvili test, other Irish and European court rulings, and the availability of medical treatment in Austria. Consequently, it is not found that your rights under Art. 3 ECHR and/or Arts. 4 CFREU would be breached by your transfer to Austria."

 

17.  The decision also addressed, with similar regard to caselaw from the ECHR and the ECJ as well as our domestic jurisprudence, the Applicant's right to private and family life protected under both the Charter and the Convention, explaining at length why the Minister remained of the opinion that there are no exceptional circumstances that would merit the application of Article 17(1) of the Dublin Convention in the Applicant's case.  Following this detailed assessment, it was confirmed that in accordance with the provisions of the Dublin Regulation, the Applicant's transfer to Austria would take place as soon as practically possible.

 

TEST

18.  The application is moved on the well-known arguable grounds threshold identified in G v. Director of Public Prosecutions [1994] 1 I.R. 374.  While this is a low threshold, it is nonetheless necessary for an applicant for leave to proceed by way of judicial review to demonstrate a sufficient interest in the matter to which the application relates to , that the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review, that on these facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks, that the application has been made promptly and within the  applicable time limits and that the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be in order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, in all the facts of the case, a more appropriate method of procedure.

 

19.  Arising from decided case-law in relation to the issues which the Applicant seeks to pursue in these proceedings (addressed below) and identified discrepancies in the papers, it is my view that the Applicant has a hill to climb in relation to establishing facts upon which an arguable case in law is grounded. 

 

20.  What an "arguable" case might mean was amplified by Denham J. in the G v. D.P.P decision, with whom Blayney J. agreed. At p. 382, she stated: 

 

 

 

"This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar - to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily. ... It is a preliminary filtering process for which the applicant is required to establish a prima facie case. Ultimately on the actual application for judicial review the applicant has an altogether heavier burden of proof to discharge."

 

 

21.  By way of subsequent elaboration on the test, in S and Others v Minister for Justice and Equality [2013] IESC 4, (cited in O.O. v Min for Justice [2015] IESC 26 by Charleton J.) Clarke J. referred at para. 5.1 of his judgment to:

 

"a sufficiently arguable case... for the grant of leave to seek judicial review in the light of the existing jurisprudence." 

 

22.  More recently, in O.O., the Supreme Court (Charleton J.) referred back to the earlier decision of Clarke J. in the S case, before proceeding to observe (at para. 15):

 

"Any issue in law can be argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not empty. There would be no filtering process were mere arguability to be the test without, at the same time, taking into account that trivial or unstatable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated. It is still required to be shown that a prima facie legal argument has been established. In terms of evidence, the requirement for a prima facie case is regarded as that which "if not balanced or outweighed by other evidence, will suffice to establish a particular contention"; Halsbury's Laws of England (5th edition) volume 11, paragraph 767. In terms of law, the test is no different: it is a point of law which if not balanced or outweighed by other principles will suffice to establish the contention. This is the filter, which the leave application is designed to be, in order to ensure that there is sufficient reason to disrupt administrative decisions and to litigate them."

 

23.  It seems from the foregoing that the test I must apply is whether the Applicant has demonstrated a prima facie legal argument that has a reasonable prospect of success and whether the evidence is such as to support that prima facie argument being advanced.  I am engaged in this exercise as a filtering or screening process to prevent an abuse of the process, trivial or unstatable cases proceeding, and protect against unstateable claims impeding public authorities unnecessarily.

 

DEFICIENCIES IN THE PAPERS

24.  The paperwork grounding this application is unsatisfactory.  I note that the Applicant has changed solicitor recently.  This may explain why there are gaps in the file but does not cure the resulting evidential deficit.  By way of example, in the chronology appended to written submissions filed on his behalf the Applicant and at para. 11 of the written submissions lodged in support of this leave application, it is stated that the IPAT affirmed the transfer decision on the 20th of May, 2024, finding no risk of ill-treatment by Austrian authorities and determining compliance with EU and international rights standards. It is stated that that despite his mental health diagnosis, the IPAT found no evidence of a real risk of deterioration or breach of Article 3 ECHR. No IPAT decision dating to May, 2024, has been exhibited. 

 

25.  The IPAT decision exhibited in these proceedings is the one in respect of which relief is sought. It relates to a hearing which took place on the 12th of September, 2024, but is dated the 23rd of January, 2025.  It does not appear from the history contained in the decision itself that it is correct to state that there was a decision of the IPAT in May, 2024, because there is a reference (at para. 4.1) to a postponement of an earlier hearing to allow the Applicant to obtain a medico-legal report with the oral hearing then rescheduled for the 12th of September, 2024.  If, for reasons which are not apparent, there was an IPAT decision in May, 2024, then that decision is not exhibited in the papers before me.

 

26.  It seems likely that there are similar deficiencies in respect of earlier decisions on two previous Article 17 applications to the Minister.  The decision on the first application made in June, 2024, is referred to and even quoted at paragraph 10 of the written submissions lodged in support of the leave application but it is not exhibited. 

 

27.  It is unclear if there was a second decision but in view of the reference to a "third request" made in the decision under challenge and the practice apparent of issuing a decision letter promptly apparent in respect of the other two requests, it seems likely that there was. 

 

28.  Clearly, any previous decision on an Article 17 application should have been exhibited and is necessary and relevant evidence grounding the within proceedings.  It must surely be central to the Applicant's claim that his Article 17 application has not been considered in accordance with law that he be in a position to demonstrate that any lacuna in the third decision prompted by the receipt of one new and short medical report was not addressed in previous decisions.

 

29.  There are some further discrepancies in the pleadings which I wish to flag to signal my dissatisfaction in a bid to ensure that these issues are not recurring.  The factual grounds advanced in the Statement of Grounds stop with a decision to refuse the Article 17 application communicated on the 11th of June, 2024 (which decision is not in evidence) but without referring to subsequent events including the decisions of the IPAT in January, 2025 and the Minister in February, 2025.  These are the decisions under challenge in these proceedings.  I do not understand why the decisions which are the subject of challenge on legal grounds and in respect of which relief is sought are not referred to in the factual grounds, especially when previous decisions are but without then being exhibited.  If there had been earlier proceedings, I might assume that earlier pleadings had been adapted incompletely in a copying exercise not effectively executed but no such earlier proceedings are disclosed and I do not think the existence of earlier proceedings can explain the incomplete presentation of the papers.

 

 

GROUNDS OF CHALLENGE

30.  There are essentially two primary grounds of challenge advanced.

 

31.  At Ground (e)(1) the Applicant seeks to pursue an issue regarding the application of the Carltona principle to Article 17 decisions notwithstanding the determination of this point against the Applicant by Bradley J. in RG v International Protection Appeals Tribunal & Ors [2024] IEHC 579.  Although acknowledging the determination of this point against him, the Applicant states that he seeks to retain this point for appeal.  I understand this to be a reference to an ultimate appeal in these proceedings as I have not been informed that the decision in RG is under appeal. 

 

32.  The second ground of challenge is a challenge to the rationality of each of the IPAT and subsequent Ministerial decisions made in January and February, 2025, respectively.

 

Application of the Carltona principle to Article 17 Decisions

33.  Having considered the judgment of Bradley J. in R.G., I am satisfied that the argument the Applicant seeks to advance in this case is on all fours with the argument comprehensively considered in that judgment and rejected in clear and authoritative terms.  I note in particular Bradley J's treatment of the decision in NVU v. Refugee Appeals Tribunal [2020] IESC 46 in which Charleton J. (with whom Clarke CJ., O'Donnell, MacMenamin and O'Malley JJ. agreed), held that the discretion in Article 17(1) of the Dublin III Regulation was exercisable by, and only by, the Minister and not the IPO, because the Applicant relies on his extrapolation of principle from that decision to make his case.  The argument the Applicant seeks to revive in an eventual appeal of a High Court decision in this case is squarely addressed by Bradley J.

 

34.  In R.G., Bradley J. found that the Article 17 decision in the case before him was taken by a civil servant acting under ministerial authority, in much the same way that in Carltona, private property had been requisitioned by a civil servant acting under the authority of the Minister pursuant to war-time regulations.  Bradley J. was satisfied that the ministerial decision was made by a departmental official on her behalf and was not a decision made by the IPO as one of the range of decisions that the IPO makes as part of the statutory process and which then can be appealed to the IPAT.  

 

35.  In his carefully reasoned judgment, Bradley J. further pointed out that given the range of executive responsibilities the Minister for Justice has, it would be impossible in practice for her to carry out all the legal duties required of her.  Bradley J. acknowledged that whilst the Carltona principle can be defeated expressly or impliedly by statutory language, there is no such statutory preclusion in the Article 17 context nor is there language used to indicate that the Minister must make the decision 'personally'.  

 

36.  In view of the persuasive reasoning in R.G. it is my view that the decision is clearly correct.  I do not understand the decision to be under appeal or for there to be any live question concerning this issue in R.G. itself and to that extent I understand the point to have been finally decided in a manner which is ordinarily binding on me, absent special circumstances. 

 

37.  It seems to me that in view of the comprehensive decision of Bradley J. in R.G., I cannot conclude that an arguable grounds threshold is reached in respect of this aspect of the Applicant's challenge, at least not on a standalone basis. 

 

38.  In light of the expressed wish to preserve a right of appeal on this point and in circumstances where the issue has not been determined by the Court of Appeal or the Supreme Court (at least to my knowledge), I have decided that my decision on whether to refuse leave or to give leave on this issue for the purpose of allowing all points to travel together as urged on behalf of the Applicant requires me to first consider the strength of the other argument advanced.  

 

39.  I take this approach because I am mindful that if I refuse leave on this point but grant leave in respect of other aspects of the proceedings, this would trigger an immediate question of appeal on the Carltona point in circumstances where a question which I had permitted to proceed would remain live before the High Court resulting in an undesirable multiplicity of proceedings, potentially defeating the very purpose of the screening process so that public authorities are not impeded unnecessarily. 

 

40.  I consider it consistent with a screening or filtering process that I should seek to avoid unnecessary duplication of proceedings, unless I have no real alternative.  For this reason, I will decide on whether the second substantive ground of challenge advanced is arguable before concluding on whether it is a proper exercise of discretion to grant leave on the Carltona argument notwithstanding my view that it is bound to fail in the High Court.  This is because if I grant leave on the second element of this case, a further consideration arises as to whether the objective of keeping the grounds sought to be argued together is sufficiently compelling to justify the grant of leave on this first ground notwithstanding my assessment of its prospects of success as being nil because it would contribute to the more efficient use of the public resource of the appellate court who might be required to hear one instead of two appeals.

 

 

Rationality Challenge - Humanitarian and Rights Considerations

41.  The Applicant's remaining challenge is that inadequate regard was given to humanitarian considerations and/or his private life rights in the most recent Article 17 Decision, and in particular the potential risk of harm to him in the transfer process arising from his mental health condition.  A previous Article 17 Decision communicated after a first medico-legal report was submitted in July, 2024, has not been placed in evidence.

 

42.  The Applicant separately alleges that the IPAT similarly failed to consider his mental health vulnerabilities and risk of harm to him if returned to Austria in its decision on appeal against the IPO determination that Austria was the responsible Member State under the Dublin III Regulation for processing the Applicant's claim.

 

43.  The case now made on behalf of the Applicant must be understood in its own legal and factual context.  These proceedings are not concerned with a transfer to Somalia.  The proposed transfer is to another Member State of the EU.  This other EU Member State, Austria, has accepted responsibility in accordance with EU law for the processing of his international protection claim.  There is no question of the Applicant being removed from the territory of the EU without his claim for protection being considered in accordance with the requirements of EU law, including the requirements of the Charter and the ECHR.

 

44.  By way of preliminary observation in respect of both decisions and having carefully considered both the IPAT decision and the decision of the Officer of the Minister communicated in January and February, 2025, I am struck by the quality of both decisions.  In my view, each displays a high degree of engagement with the facts, an understanding of the law and a reasoned application of principle in arriving at a decision.

 

45.  While the Applicant contends that both the Minister and the IPAT acted irrationally or unfairly in the treatment of the medical materials submitted on his behalf, particularly in light of the COI , raising a real risk that the transfer would result in a risk to his mental health, which constitutes a breach of his fundamental right to private life, it seems to me that this complaint not substantiated to the requisite degree when one considers the terms of each of the decisions that are subjected to this criticism. 

 

46.  Of note, in his arguments directed to both the IPAT and Ministerial decisions the Applicant relies on the CJEU judgment in C.K. & ors v. Republika Slovenija C‑578/16 PPU, clarifying that the "real and proven risk" of exposure to inhuman and degrading treatment was "linked to the risk of a significant and permanent deterioration in the state of health of that person, in so far as he had a particularly serious underlying mental and physical condition" but fails to acknowledge that this judgment of the CJEU was carefully considered and applied by both the IPAT and the Officer of the Minister in their respective decisions.  Crucially, no error of law has been identified in the interpretation and application of that decision by the IPAT or the Officer of the Minister and it is not suggested that the wrong test has been applied, nor could it be in view of the terms of both decisions.

 

47.  Turning first to consider the Ministerial decision as the claim is advanced firstly as against the Minister's decision and only laterally in respect of the IPAT's.

 

48.  It is important to stress that the Minister's Article 17 decision is made in response to a "third request", dated the 21st of February, 2025, in which a short letter from a Dr. Visser at St. Loman's Psychiatric Facility is submitted.  The previous decisions which the papers suggest may have issued in June and July, 2024, following earlier requests are not exhibited such that the Applicant is immediately on the backfoot in terms of establishing irrational consideration of his application. 

 

49.  As Hyland J. points out in R.G. with reference to the then very recent decision in Joined Cases C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21 (referred to as "CZA" in the judgment of Hyland J.), the CJEU have ruled as follows:

 

"Article 3(1) and the second subparagraph of Article 3(2) of Regulation No 604/2013, read in conjunction with Article 27 of that regulation and with Articles 4, 19 and 47 of the Charter of Fundamental Rights, must be interpreted as meaning that the court or tribunal of the requesting Member State, hearing an action challenging a transfer decision, cannot examine whether there is, in the requested Member State, a risk of infringement of the principle of non-refoulement to which the applicant for international protection would be exposed during his or her transfer to that Member State or thereafter where that court or tribunal does not find that there are, in the requested Member State, systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection. Differences of opinion between the authorities and courts in the requesting Member State, on the one hand, and those of the requested Member State, on the other hand, as regards the interpretation of the material conditions for international protection do not establish the existence of systemic deficiencies."

 

50.  Hyland J. further noted that the CJEU had referred to the mutual trust between the Member States that common values will be recognised, and that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised by the Charter,  namely Articles 1 and 4 of the Charter, including in the area of freedom, security and justice, and notes that the principle of mutual trust requires Member States, save in exceptional circumstances, to consider all the other Member States to be complying with the fundamental rights recognised by EU law. The CJEU stated:

 

"Accordingly, in the context of the Common European Asylum System, it must be presumed that the treatment of applicants for international protection in all Member States complies with the requirements of the Charter, the Convention relating to the Status of Refugees signed in Geneva on 28 July 1951 and the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 ..."

 

51.  Of course, this is not an irrebuttable presumption but on any metric the threshold is high.  The Applicant submits that he meets the exceptional circumstances for the exercise of Art. 17 discretion, as identified in B.K. v. Minister for Justice [2021] IEHC 717.  It bears emphasis, however, that in B.K. the Court did not interfere with the Minister's decision for reasons which were clearly set out by Ferriter J. and which it seems to me weigh heavily against the Applicant's ultimate prospects of success in this case. 

52.  In his judgment in B.K. Ferriter J. referred to the terms of the Supreme Court's decision in NVU v. RAT & Ors [2020] IESC 46 from which he said it was clear that the Minister has a very wide discretion indeed in the exercise of her discretion under Article 17(1).  He observed that it was further clear that Charleton J. giving judgment for the Court in NVU was of the view that fundamental rights would become engaged only exceptionally in cases involving transfer under the Dublin system and that such rights would be assumed to be upheld throughout the Dublin system (see NVU at paragraph 37). 

 

53.  While the Applicant need only demonstrate arguable grounds on an application for leave to challenge the Article 17 decision, that is arguable grounds that he has substantiated such a high threshold of concern on the facts of his case that the Minister's decision is not sustainable on rationality grounds.  It seems to me that the burden on the Applicant in challenging a Ministerial decision under Article 17 is particularly high and this must bear on my assessment of his prospects of success in deciding whether he has demonstrated arguability.  The test he must ultimately meet to succeed is onerous and by extension the basis he advances to substantiate arguability is commensurate and requires the identification of concerns of some substance.

 

54.  Insofar as it is complained that the Article 17 Decision was irrational in finding that the materials submitted did not disclose "any humanitarian or compassionate ground", despite evidence of PTSD, depressive features, and suicidal ideation, and despite the recognition of the Applicant as a "victim of horrendous trauma" who required ongoing medical treatment, this contention is made on the basis of a selective quote from the decision which continued "such that she would exercise her discretion under Article 17(1)". 

 

55.  Contrary to what is suggested on behalf of the Applicant to ground an irrationality argument, the decision-maker was clearly not saying that no humanitarian or compassionate grounds had been presented but rather that they were not sufficient to warrant the exercise of a discretion under Article 17(1).  While it might certainly have been irrational to say that no evidence had been presented when evidence had been, it is an entirely different proposition for the decision-maker to say that such evidence as has been submitted does not reach the threshold required by the Minister to exercise his very broad discretion.

 

56.  It is further contended that the Ministerial decision failed to consider the potential deterioration of the Applicant's mental health if transferred to Austria, as highlighted by the reports of the medical professionals.  It is complained that the Article 17 Decision did not adequately engage with the medical reports or consider the humanitarian aspect of Article 17 which could justify allowing the Applicant to remain in Ireland.  

 

57.  Quite apart from the failure to exhibit earlier decisions in the process to properly substantiate the complaint insofar as earlier material submitted is concerned, it is my view that no fair reading of the careful decision of the Officer of the Minister on foot of the third request made could be thus described.  In the decision, the Officer of the Minister explained the approach to the recent medical evidence adduced and medical evidence in general in considerable detail.  The decision-maker considered not only the detail of the medical evidence and the precise nature of the concerns actually substantiated by that evidence but also addressed at length COI in relation to the availability of healthcare and other services in Austria.

 

58.  I note also that the decision-maker acknowledged in clear terms that where an applicant is "especially vulnerable" because of their state of health, the sending State must consider if there is a serious risk of Art 3 ECHR harm and proceeded to conduct an assessment of risk on this basis before concluding that the Applicant will be able to avail of the necessary healthcare in Austria. 

 

59.  It is clear from the decision that the medical evidence presented was fully considered.  It must be recalled also that it was for the Officer of the Minister, not me, to assess that evidence.  Furthermore, while I have no role in assessing the evidence, it is patent that the medical evidence was open to differing interpretations.  I note that it is contended in legal submissions that certain conclusions are contended for as "suggested" by the evidence or findings are advanced on the basis that they should have been understood as arising from the evidence without the medical evidence substantiating in clear or express terms the claims being made in reliance thereon. 

60.  I do not see any basis in law or fact for contending that the treatment of medical evidence in this case by the decision-maker was either irrational and/or in disregard of the analysis of medical professionals.  The conclusions reached are ones which were open on the material and there is no prospect, in my view, of successfully contending that the decision should be quashed as irrational having regard to the medical evidence before the decision-maker.

 

61.  It is contended that the decision-maker overlooked the Applicant's past negative experiences in Austria, which suggested either systemic flaws in reception conditions or evidence of lack of reception conditions in his circumstances.  In that regard, it is complained that the Article 17 decision-maker did not fully assess the risk of inhuman or degrading treatment.  No particulars of this alleged past negative experience have been expanded upon in the pleadings.  Conditions in Austria were, however, considered in the Ministerial decision.  Indeed, as pointed out in the decision, Austria unlike Ireland has signed up to the EU Reception Conditions Directive which mandates that applicants have access to housing, food, clothing, healthcare, education for minors and access to employment.

 

62.  As for the complaint that the decision-maker did not properly analyse the Applicant's right to private life under Article 8 ECHR/Article 7 CFR or have due regard to his medical condition and treatment or failed to conduct a proportionality analysis under Article 8(2) ECHR, arguments which are advanced in general terms, it suffices to refer to the terms of the decision itself to be satisfied that a basis in law and fact has not been established to ground these complaints. 

 

63.  The Article 17 Decision refers to ECtHR and ECJ jurisprudence as endorsed by the Supreme Court in MK (Albania) v. Minister for Justice and Equality [2022] IESC 48and applying the principles emerging to an assessment of the factors peculiar to the Applicant's case, it was found that a threshold for giving Article 17 permission to maintain the protection claim in Ireland when Austria was the responsible State had not been reached. 

64.  Contrary to what is contended on behalf of the Applicant, the decision-maker rejected that the Applicant had established rights under Article 8.1.  The complaint advanced by the Applicant is therefore predicated on a misrepresentation of what the decision says.  It is clearly stated at p. 14 of the Decision that the Minister accepted that a decision to transfer the Applicant to Austria would constitute an interference with the Applicant's right to private life.  Accordingly, it is recorded in black and white in the decision that the Officer of the Minister did in fact accept that the Applicant had developed a private life in Ireland. 

 

65.  It is also simply false to state that the Minister did not thereafter conduct a proportionality assessment, as is contended on behalf of the Applicant. This proportionality assessment was conducted over the course of several pages and with express regard to the factual matrix of the Applicant's individual case.  The complaint advanced in the terms in which it is advanced is not sustainable on the evidence.

 

66.  The contention in written submissions that the decision-maker was irrational in finding that "no evidence" had been provided that the Applicant would be mistreated in Spain clearly relates to another case, given that the Applicant had actually made applications in Austria and Greece, reflecting it seems to me the cut and paste nature of the complaints advanced on behalf of the Applicant without due regard to the terms of the actual decision made in this case. 

 

67.  It has not been substantiated to a requisite degree, as contended by the Applicant, that the decision-maker failed to consider all relevant information in respect of the risk of homelessness and destitution.  While the Applicant complains that he was accommodated in tented accommodation in Austria, he accepts that he received three meals a day and was afforded access to sanitary facilities for so long as he remained there.  His primary concern appeared to relate to a fear of being returned to Greece where he believed he would suffer destitution.  It was this fear which precipitated his departure from Austria. 

 

68.  It bears note as disclosed on the face of the papers exhibited that it has since been confirmed that Austria never made a take-back request to Greece in the Applicant's case.  Furthermore, Greece refused the Irish take-back request.  Accordingly, the factual basis for a fear of destitution if return by Austrian authorities to Greece is simply too tenuous and is not a real concern on the material before me.  It bears note that according to Dr. Giller, the Applicant experienced homelessness in Ireland, despite agitating now to remain here which should inject some reality to a consideration of the difficult conditions encountered by protection seekers whether in Ireland or Austria or some other State for that matter and the weight to be attached to resistance to being transferred to another EU Member State by reference to conditions in that State. 

 

69.  In deciding on this leave application in which it is sought to challenge the broad Ministerial discretion provided for under Article 17, I must remain mindful of the Court's role by way of judicial review.  As Ferriter J. added in his judgment in B.K., it is not the role of this Court on a judicial review challenge to engage with, still less express a view on, the merits of the Minister's Article 17 Decision.  In his judgment he endorsed the Minister's position that exceptional circumstances must be made out if the "ordinary" Chapter III transfer decision process is to be disapplied by the invocation of discretion under Article 17.

 

70.  As in B.K. the Minister's decision in this case demonstrates on its face that all the Applicant's representations were considered.  The decision gives a coherent set of reasons as to why the case made on behalf of the Applicant was not considered such as to persuade the Minister to exercise a very wide discretion under Article 17 in favour of Ireland assuming jurisdiction to examine the Applicant's international protection application.  There is little or no prospect in my view of the Applicant successfully contending that this discretion was irrationally exercised on the facts of this case such that a Court would be prepared to intervene in this area of very broad Ministerial discretion.

 

71.  As for the IPAT's decision which preceded the last request to the Minister renewing a request that he exercise his discretion under Article 17, it is contended on behalf of the Applicant that it is similarly flawed for failure to adequately consider the Applicant's severe mental health conditions, which includes PTSD, depressive disorder, and anxiety.  It is contended that Dr. Giller's report indicated a risk of mental health deterioration and potential suicidal ideation if the Applicant were returned to Austria, but these concerns were dismissed.  I cannot see how this complaint is a fair reflection of the IPAT's approach. 

 

72.  In fact, the IPAT carefully considered Dr. Giller's report over the course of several pages.  The decision of Hyland J. in R.G. v. IPAT, which concerned a report in not dissimilar terms, was also considered.  The IPAT reasoning in respect of its assessment of the medico-legal report is clearly articulated and the IPAT concludes (at para. 5.25) as follows:

 

"There are some additional factors in this particular case that, in the view of the Tribunal weigh against a finding that the appellant has satisfied the test in C.K. Dr. Giller has not clearly explained how the appellant's denial of suicidal thinking in circumstances where this is against his religion causes her to nevertheless conclude that deportation of the appellant to Austria would mean that the suicide would become a 'distinct possibility', Furthermore, the finding of a 'distinct possibility of suicide is not as forceful as a finding of 'high risk of suicide', as was the finding In the report under consideration in R.G. v. PAT & Others /2023} IEHC 742."

 

73.  Insofar as complaint is made that the IPAT focused on the absence of current suicidal ideation, neglecting future risks and the dynamic nature of mental health and gave insufficient weight to medical expertise, it is well established that the assessment of evidence and the weight to be attached to that evidence is quintessentially a matter for the IPAT, not this Court in judicial review proceedings.  I see no basis upon which a court could conclude that it was not open to the IPAT to reach the conclusion it did based on its assessment of all of the material before it.

 

74.  No argument was made in the written submissions directed to the plea that the IPAT decision was flawed by reason of a failure to consider the Applicant's Article 8 ECHR rights in its consideration of the transfer decision.  Without embarking on a consideration of whether the IPAT is required to conduct an Article 8 assessment on a transfer decision, it suffices to make two points.  Firstly, it seems that no Article 8 submission was advanced on behalf of the Applicant before the IPAT, despite careful submissions in writing prepared by counsel.  Secondly, the Minister whose function it is to make the transfer order has engaged in a careful Article 8 analysis in his decision.  It seems to me that the Applicant's complaint must therefore be considered tenuous in the extreme.

 

75.   It has not been demonstrated to an arguable grounds threshold that the IPAT decision is unsustainable on rationality grounds as contended.  The IPAT addressed in a careful and reasoned way the objections advanced to the transfer of the Applicant to Austria, including through very careful engagement with the medico-legal report submitted on the 10th of July, 2024.

 

76.  I am satisfied that consideration was given to the facts and circumstances of the Applicant's case by the Tribunal and the Minister and I see no arguable basis in law which would entitle a court in judicial review proceedings to interfere with that decision.

 

77.  Although the written submissions filed on behalf of the Applicant do not address his application for an injunction restraining his removal from the State pending the determination of the within proceedings.  Where I am not satisfied to grant leave on the basis that arguable grounds for challenging either the IPAT's decision or the Minister's decision on a third request that discretion under Article 17 be exercised have been advanced, an injunction pending a determination of the proceedings becomes a moot question. 

 

78.  As I am refusing leave on the irrationality challenges brought against the IPAT and the Article 17 Ministerial decision, it is not necessary to consider whether I should grant leave in respect of the Carltona argument even though I am satisfied that it has little or no prospect of success so that the possibility of an appeal on this point could be kept open.  As I am refusing leave on all grounds, no issue of more than one set of proceedings currently arises.

 

CONCLUSION

79.  The Applicant's case against a transfer to Austria for a determination of his international protection claim under the Dublin III Regulations has been exhaustively considered and arguable legal grounds for challenging a refusal to admit him to the process in Ireland when he previously made application in Austria have not been identified. 

 

80.  For the reasons given, I refuse leave in this case.

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