Akhtar v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr Justice David Keane
Judgment Date06 June 2019
Neutral Citation[2019] IEHC 411
CourtHigh Court
Docket Number[2017 No. 379JR]
Date06 June 2019
BETWEEN
SALEEM AKHTAR
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

[2019] IEHC 411

Keane J.

[2017 No. 379JR]

THE HIGH COURT

Judicial review – Visa – Separation of powers – Applicant seeking judicial review of a decision made on appeal by the respondent to refuse the applicant a visa authorising him to enter the State – Whether the executive power of the respondent to grant or withhold a visa to a person who holds a work permit issued by the Minister for Jobs, Enterprise and Innovation is significantly controlled by the Employment Permits Act 2006

Facts: The applicant, Mr Akhtar, applied to the High Court seeking judicial review of a decision made on appeal by the respondent, the Minister for Justice and Equality, on 7 February 2017 to refuse the applicant a visa authorising him to enter the State. Mr Akhtar argued that the executive power of the Minister to grant or withhold a visa to a person who holds a work permit issued by the Minister for Jobs, Enterprise and Innovation (MJEI) is significantly controlled by the Employment Permits Act 2006. Mr Akhtar complained that he was not provided with an opportunity to address the matters of concern to the Minister prior to the Minister’s decision on appeal. The Minister argued that, in submitting through his legal representatives, both at first instance and on appeal, a range of documents on his qualifications, skills, knowledge and experience relevant to the employment for which he had obtained a work permit, and in allowing his application for a visa to be considered and adjudicated upon on that basis, Mr Akhtar waived any entitlement to then challenge the Minister’s adverse decision on the basis that it was impermissible for the Minister to have considered those matters.

Held by Keane J that there is no clear statutory provision in the 2006 Act that operates to curtail or constrain the exercise of the wide discretion vested in the Minister in the exercise of his executive power. Keane J noted the applicant’s failure to disclose for the purpose of the proceedings the information (and documentation, if any) concerning his work experience that was provided to the MJEI in accordance with s. 6 of the 2006 Act when the application for a work permit was made (whether by Mr Akhtar or his proposed employer), and to which the Minister would have had regard, insofar as it was considered relevant to do so, under s. 11(1)(c) of that Act; thus, not only was there no basis to conclude that the MJEI was required to be satisfied that Mr Akhtar had the appropriate experience, but there was no basis to conclude that there was any, or any sufficient, material before the MJEI that would have allowed him to be so, had he nonetheless embarked on that consideration. Keane J held that this was not a case that attracts the level of procedural protection appropriate to the determination of refugee status claims, considered in cases such as B.W. v Refugee Appeals Tribunal [2017] IECA 296. Keane J was satisfied that the Minister did not fail to give adequate reasons for his decision. Keane J rejected Mr Akhtar’s unsupported assertion that the Minister’s decision failed the test of reasonableness under the principle identified by Henchy J in State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 642. Keane J held that the application should be refused on the ground that Mr Akhtar waived any entitlement to challenge the Minister’s adverse decision on the basis that it was impermissible for the Minister to have considered his qualifications, skills, knowledge and experience relevant to the employment for which he had obtained a work permit.

Keane J held that the application for judicial review would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 6th June 2019
Introduction
1

This is the judicial review of a decision made on appeal by the Minister for Justice and Equality (“the Minister”) on 7 February 2017 to refuse the applicant Saleem Akhtar a visa authorising him to enter the State (“the decision”).

Background
2

Mr Akhtar is a national of Pakistan, where he resides.

3

On 31 August 2016, the Minister for Jobs, Enterprise and Innovation [the MJEI] wrote to Mr Akhtar to inform him that he had been granted an employment permit under s. 8 of the Employment Permits Act 2006, as amended (“the Act of 2006”). That letter went on to state in material part:

“Please note that this permit relates to employment only and it is not a residence permit. You must also have at all times:

(a) current appropriate permission from the immigration authorities which allows you to reside and undertake employment in the State, and

(b) an up to date passport.”

4

The employment permit granted to Mr Akhtar recites on its face that it was valid from 11 November 2016 to 10 November 2018. It identifies Mr Akhtar's proposed employer as Silver Spoon Foods Limited; his proposed place of employment as Galway Curry and Kebab House, 20A Mary Street, Galway; and his proposed job as that of chef.

5

On 8 December 2016, the Consulate of Ireland in Karachi, Pakistan, wrote to Mr Akhtar to inform him that his application for an Irish visa had been refused by the Irish Naturalisation and Immigration Service (“INIS”). The reasons given for that refusal were as follows:

“ID:- Visa Officer is not satisfied with the quality of the employment letter submitted with the application.

ID:- Applicant has not provided any evidence of qualifications achieved.

INCO:- Inconsistencies e.g. contradictions in the information supplied – Advertised position required a minimum of 3 years experience which applicant has not provided evidence of.”

The letter went on to inform Mr Akhtar that he could appeal the decision within 2 months of the date of that letter, and that all additional documents should be submitted with his appeal.

6

The applicant's solicitors wrote to the INIS to appeal that refusal on 23 January 2017, addressing each of the three reasons that were provided for it in turn. In response to the third reason given, they enclosed two additional documents, which they described as follows:

“Letter from Al Naqebi Hotel, Lari Adda Cherlwal, Tehsil and District Gujrat. [T]his letter is dated the 2nd October 2016 and certifies that the Applicant was working as a Chef/Kitchen in charge from June 2013 to June 2016. On the 30th June 2016 he resigned of his own free will. This letter has been attested by a notary public in Plistan, by a magistrate and by the Ministry of Foreign Affairs;

Letter [from] SR, Shahbaz Restaurant dated 7th October 2016, confirms that the applicant has worked since the 1st July 2016 as a Senior Chef. This letter is attested by the Ministry of Foreign Affairs, Magistrate 1st class and by the Department of Tourist Services.”

7

Quite what the relevant notaries, magistrates and civil servants were attesting to has not been made clear in these proceedings. Was it the genuineness of those letters? Or the authenticity of the signatures upon them? Or the truth of their contents? I do not know. Some confusion is also caused by the statement of the applicant's solicitors in the material part of their cover letter that, on their instructions, it was Mr Akhtar's belief that, having already provided “this information” to the Department of Jobs, Enterprise and Innovation [“the DJEI”] he did not need “to again provide same.” And yet, the two letters concerned, which contain the relevant information, are both dated October 2016, whereas Mr Akhtar had already obtained a work permit from the DJEI on 31 August 2016. That peculiarity, in turn, serves to focus attention on Mr Akhtar's failure in these proceedings to provide any meaningful information about precisely what information was placed before the MJEI in order to obtain that work permit.

8

On 7 February 2017, the INIS wrote to Mr Akhtar in Pakistan to inform him that his appeal had not been successful. The reasons provided for the refusal of a visa on appeal were as follows:

“ID:- Quality of documents

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

The visa appeals officer is not satisfied with the quality of the employment letters issued from the applicant's stated employers in Pakistan. Both of these letters have insufficient contact details and information i.e. website or email addresses. Also noted are spelling mistakes and the incorrect use of grammar. The quality of these letters thus brings the required three years of experience into question. It is also noted that in the applicant's previous visit visa application he was working in a vastly different area from his stated employment here having already completed his “Chef & Cooking Course” some years before.

The onus rests on the applicant to satisfy the Visa Officer that a visa should be granted for the purpose sought. Accordingly, the decision to refuse the granting of the visa sought at first instance has been upheld following appeal.”

9

On 3 April 2017, Mr Akhtar's solicitors wrote to the INIS requesting that the Minister withdraw the appeal decision and reconsider the appeal on an accelerated basis. The letter asserted, in substance, that the Minister's decision was invalid for the following reasons. First, the decision wrongly went behind the work permit that had been issued to Mr Akhtar by the MJEI and, in making it on that basis, the Minister for Justice and Equality had unlawfully usurped a power that the Oireachtas had conferred solely upon that other Minister. Second, before making the decision, the Minister for Justice and Equality wrongly failed to confer with the MJEI concerning whatever information the latter held on Mr Akhtar's application. Third, the decision of the Minister to refuse Mr Akhtar a visa on the basis stated was a collateral attack upon the decision to grant Mr Akhtar a work permit. Fourth, the Minister acted ultra vires in...

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