Ahmed Abounar, Walaa Marey and Mohamed Abounar (A Minor Suing by His Father and Next Friend) Ahmed Abounar v The Minister for Justice and Equality

JurisdictionIreland
JudgeMs. Justice Niamh Hyland
Judgment Date28 April 2022
Neutral Citation[2022] IEHC 245
CourtHigh Court
Docket NumberRECORD NO. 2021/318/JR
Between
Ahmed Abounar, Walaa Marey and Mohamed Abounar (A Minor Suing by His Father and Next Friend) Ahmed Abounar
Applicants
and
The Minister for Justice and Equality
Respondent

[2022] IEHC 245

RECORD NO. 2021/318/JR

THE HIGH COURT

Judicial review – Visas – Inadequate reasons – Applicants seeking judicial review of a decision to refuse them visas to enter Ireland – Whether inadequate reasons were provided at the appeal stage

Facts: The first applicant, Mr Abounar, applied to the High Court for judicial review of a decision of the Irish Naturalisation and Immigration Service of 15 February 2021 to refuse him a visa to enter Ireland. The applicant had already received a Critical Skills Employment Permit from the Minister for Business, Enterprise and Innovation. He complained that the receipt of the Critical Skills Employment Permit meant that he (and his wife and son, the second and third applicants respectively) ought to have been given visas and that it was irrational to refuse them visas in those circumstances. The applicant argued that inadequate reasons were provided at the appeal stage, such that he did not understand the basis for the refusal and he could not adequately challenge the refusal. At paragraph 7 of the statement of grounds, it was pleaded that certiorari was sought as no opportunity was afforded to the applicant to address or respond to the concerns of the visa officer raised for the first time in her decision dated 15 February 2021. At paragraph 5 of the statement of grounds, it was pleaded that there was no reasonable, rational, lawful or evidential basis upon which the respondent could have reached the decision that the applicant had provided insufficient documentation in support of the application. Separately, it was argued that the employment permit ought to have been considered as material relevant to the question of the sufficiency of his qualifications and experience.

Held by Hyland J that, in the circumstances, she could not agree that the applicant had established that the reasons were inadequate. She rejected the argument that fair procedures required the respondent either to ignore the new material showing inconsistencies, or to draw the applicant’s attention in advance of her intention to rely upon that new material. She found it difficult to see how the applicant could credibly argue that the respondent acted unreasonably in concluding that he had not submitted any evidence of sufficient work history or qualifications to do the specific job for which the work permit issued; the applicant had provided no evidence that he was a qualified software engineer or software developer or had experience in those areas. In those circumstances it seemed to Hyland J that the applicant had fallen far short of the burden of proof of establishing that there was no basis for the decision of the respondent. She held that the respondent clearly considered the permit and treated it as a core plank of her decision.

Hyland J rejected the applicant’s claim that the decision of 15 February 2021 was unlawful, and dismissed the application for judicial review.

Application dismissed.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 28 April 2022

Introduction
1

This is an application for judicial review of a decision of the Irish Naturalisation and Immigration Service (“the INIS”) of 15 February 2021 to refuse the first named applicant a visa to enter Ireland. The applicant had already received a Critical Skills Employment Permit from the Minister for Business, Enterprise and Innovation. The essence of his complaint is that the receipt of the Critical Skills Employment Permit meant that he (and his wife and son, the second and third applicants respectively) ought to have been given visas and that it was irrational to refuse them visas in those circumstances.

Facts
2

The applicant is an Egyptian national and an engineer by profession. While living and working in Saudi Arabia, he secured employment with E-Businesssoft Technologies Limited, a company based in Ireland with its registered offices at 20 Harcourt Street, Dublin 2.

3

The applicant then applied for a Critical Skills Employment Permit from the Minister for Business, Enterprise and Innovation by application dated 20 July 2020. This application was granted by letter dated 4 September 2020. That letter emphasised the following:

“Please note that this permit relates to employment only and it is not a residence permit or a permission to enter Ireland. Persons who are nationals of countries that are visa required for travel to Ireland must make a visa application through www.inis.gov.ie. In the visa application you will be required to submit evidence of your professional qualifications, if required, as well as evidence of previous work experience, if required.

Visa required and Non-Visa required persons must have at all times:

  • (a) Current appropriate permissions from the immigration authorities which allows you to enter, reside and undertake employment in the State, and

  • (b) An up to date passport.”

4

Having secured this employment permit, on 9 September 2020, the first applicant applied to the INIS for a visa to be permitted to enter Ireland and take up the employment with E-Businesssoft Technologies Limited. The INIS website sets out the procedure for such an application and provides a guide for the extensive supporting documentation required. That guide identifies the following category of requisite documents:

“Evidence of qualifications and previous work experience

Evidence of qualifications and previous work experience must be submitted in support of the visa application. Examples in which experience and qualifications could potentially be demonstrated include – your 3 most recent payslips, regular salary payments to your personal bank account, employment letter from your current employer, personal tax statements, professional certificates, training certificates and so on”.

5

By letter dated 6 October 2020, the applicant's visa application was refused. The refusal letter stated;

“I regret to inform you that your application for an Irish Visa has been refused by the Irish Naturalisation and Immigration Service for the following reasons:

ID:- Insufficient documentation submitted in support of the application:- please see link to “Documents Required” as displayed on our website – www.inis.gov.ie.

OC:- Observe the conditions of the visa – the visa sought is for a specific purpose and duration:- the application has not satisfied the visa officer that such conditions would be observed.

The decision can be appealed within two months of the date of this letter. An appeal must be submitted in writing, fully addressing the reasons for the refusal to:

The Visa Appeals Officer”

6

By letters dated 12 and 13 of October 2020, the applicants lodged an appeal of the respondent's decision dated 6 October 2020. By letter dated 15 February 2021, the respondent decided to refuse the applicants' visa application. The reasons for same are set out in the part of this judgment considering the adequacy of reasons below.

Judicial review proceedings
7

An ex parte application for leave for judicial review was made in April 2021, grounded on an affidavit of the first applicant and accompanied by a statement of grounds, both of which were filed on 15 April 2021. On 19 April 2021 Burns J. granted leave to bring judicial review proceedings. A notice of motion subsequently issued stating that the application would be brought on 10 May 2021. The respondent filed her statement of opposition on 13 July 2021. The parties provided written submissions in advance of the hearing, and, at my request, supplemental written submissions after the hearing, which greatly assisted my understanding of the general regime governing the provision of visas.

Inadequate reasons
8

The applicant argues that inadequate reasons were provided at the appeal stage, such that he did not understand the basis for the refusal and he could not adequately challenge the refusal. He relies in this respect on the cases of TAR v Minister for Justice, Equality and Defence [2014] IEHC 385 and Yuliya Mukovska v The Minister for Justice and The Minister for Foreign Affairs [2021] IECA 340, arguing that, as in those cases, the reasons provided did not properly communicate the essential rationale of the decision.

9

However, the reasons in this case are very different to the reasons the subject of criticism in the two cases referred to above. In both those cases, the reasons for refusal were exclusively in what I might describe as codified form. For example, in the case of TAR, the reasons were as follows:

“OB; – Obligations to return to home country have not been deemed sufficient.

OC: – Condition – the applicant may overstay following proposed visit.”

10. Similarly, in Mukovska, the reasons were as follows;

“CP:- Need to undertake the course in this State not demonstrated or warranted.

OC:- Condition — the applicant may overstay following proposed visit.

OC:- Observe the conditions of the visa — the visa sought is for a specific purpose and duration: — the applicant has not satisfied the visa officer that such conditions would be observed.”

11

On the other hand, as has been set out above, here there was both the codified form of reasons and an additional paragraph. The codified form was as follows;

“ID:- Insufficient documentation submitted in support of the application:- please see link to “Documents Required” as displayed on our website – www.inis.gov.ie.

INCO:- Inconsistencies e.g. contradictions in the information supplied

OC:- Observe the conditions of the visa – the visa sought is for a specific purpose and duration:- the applicant has not satisfied the visa officer that such conditions would be observed.”

12

Had this been all that was provided, it may have been more difficult for the...

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