Basit Ali v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Ms. Justice Tara Burns |
| Judgment Date | 16 July 2021 |
| Neutral Citation | [2021] IEHC 494 |
| Docket Number | Record No. 2020/544/JR |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 494
Record No. 2020/544/JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms. Justice Tara Burns delivered on 16 July 2021
The Applicant is a citizen of Pakistan. He works as a chef de partie in a successful restaurant in Pakistan. In 2019, he was offered a similar position with an established Pakistani restaurant in Bray, County Wicklow.
An application was made to the Department of Business, Enterprise and Innovation, pursuant to the Employment Permits Act 2006 (hereinafter referred to as “the 2006 Act”), for a work permit for the Applicant with respect to this prospective employment. The fee to make this application is €1,000. At the hearing before the Court, it was initially asserted that the Applicant had paid this fee, which is a significant sum of money for him representing half of his annual earnings. However, it was pointed out by Counsel for the Respondent that the application form for the work permit reveals that the owner of the restaurant in Ireland in fact paid this application fee. Counsel for the Applicant accepted his error in this regard, although raised the scenario that this money may have to be repaid to the owner of the restaurant. No evidence in relation to this issue was placed before the Court. It is unfortunate that this error was made in light of the emphasis which was placed on this incorrectly asserted fact throughout the hearing.
The application for the work permit was successful and a General Employment Permit was issued to the Applicant permitting him to work as a chef de partie for a two year period from 30 August 2019 in the specified restaurant employed by the proprietor of the restaurant. The letter notifying the Applicant of the grant of the permit specifies that it “relates to employment only and it is not a residence permit”. It further states:-
“You must also have at all times
(a) Current appropriate permission from the immigration authorities which allows you to enter, reside and undertake employment in the State.”
The Court notes that the intention of the Minister for Business, Enterprise and Innovation in granting such a permit is that the Applicant would remain in the employment of the specified restaurant for at least one year and that a new application may not be made by him, except in exceptional circumstances, for a period of twelve months. Further, if the applicant ceased to be employed, for any reason, by his employer, during the two year period which the permit was issued for, the permit must be returned to the relevant Department.
In light of the condition attaching to the grant of the work permit requiring the Applicant to have appropriate permission from the immigration authorities allowing him to enter, reside and undertake employment in the State, and in light of the fact that the Applicant hails from Pakistan which is a country which the Respondent has by statutory order required its citizens to have a visa to enter Ireland, the Applicant applied to the Respondent for an employment visa on 24 September 2019. This application was refused on 27 November 2019. The reasons for the refusal were stated to be:-
“ID — Insufficient documentation submitted in support of the application – please see link to “Documents Required” as displayed on our website.
The credibility of the overall application has been diminished due to the failure to provide sufficient supporting documentation in the following areas;
Financial documents.
Employment documents payslips.
Qualifications.
Previous passport not submitted.
The quality of supporting documentation submitted by you in the following areas has diminished the overall credibility of your application.
Application letter – More information needed about job applied for in Ireland.
The visa officer has examined the evidence submitted by you in support of your application and has found insufficient evidence that you possess the required skills or experience to undertake the proposed employment. The following information has been considered as part of this decision;
Your qualifications – not submitted
The relationship between your proposed employment and your previous employment and qualifications.
F:- Finances. Evidence submitted is deemed insufficient or incomplete.
No personal financial documentation has been submitted.
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.
As the visa officer is not satisfied of the credibility of your proposed employment in Ireland there is no evidence of a genuine reason for this visa to be granted. The visa officer is therefore not satisfied that you will observe the conditions of this visa, namely that you will undertake the proposed employment and no other activities. The visa officer has considered the evidence supplied, however this has not been sufficient to satisfy the visa officer, on the balance of probabilities, that you are likely to observe the conditions of any visa granted.
The INIS website has all of the information you will need to make an application for a visa. Before appealing this decision, please check the INIS website to ensure you have included all of the relevant documents.
This decision can be appealed within 2 months of the date of this letter. An appeal must be submitted in writing, fully addressing all the reasons for refusal to [address].
All additional supporting documents should be submitted with your appeal….”
The Applicant appealed this decision on 11 December 2019 and submitted some further documentation to the Respondent. On 25 May 2020, the Respondent notified the Applicant that the original decision to refuse him a visa had been upheld. The reasons for the refusal were stated to be:-
“As elaborated in the initial refusal correspondence to you dated 27/11/19, you have not submitted the supporting documentation for this visa application. You have not provided your documentary evidence of your qualification for the employment. You have provided payslip from your employment with your claim of being paid by cash had not been supported by the documentary evidence, whereas a letter from your employer alone is insufficient.
The bank statement from HBL have been submitted in the appeals. However, there are no entries for the period from 07/11/2016 to 19/02/2019, which have not been explained.
You have failed to demonstrate with sufficient supporting evidence, the claimed link between you and your sponsor. It is not clear to myself on how you are known to your sponsor.
I am not satisfied with information supplied by you concerning your personal, economic and family circumstances has been sufficient that you would observe the conditions of the visa granted”.
Leave to apply by way of judicial review seeking an order of Certiorari of the Respondent's review decision was granted by the High Court on 5 October 2020.
The grounds of challenge to the Respondent's decision are that the Respondent erred in fact and/or acted unreasonably and/or irrationally in refusing to grant an employment visa on the basis that the Applicant had not supplied documentary evidence of his qualifications; provided insufficient evidence that he is paid in cash; failed to explain why there were no entries in his bank account statements between 7 November 2016 and 19 February 2019; and failed to demonstrate the link between himself and his sponsor. It furthermore is alleged that the Respondent's finding that the Applicant would not comply with the conditions of the employment visa was unreasonable and/or irrational and was a finding in respect of which reasons were not given.
The question has arisen as to what test the Court should apply when reviewing the Respondent's decision having regard to the fact that the issuance of a visa falls within the Respondent's executive discretion.
In KN v. Minister for Justice and Equality [2017] IEHC 527, Faherty J. held that the legality of the respondent's decision to refuse a visa was to be considered in the context of the relevant administrative law principles: namely whether the decision had been arrived at on the basis of correct facts; whether fair procedures were observed; whether it was a rational decision; and whether the basis for the refusal was patent from the decision.
However in Elmebayad v. Minister for Justice [2019] IEHC 412 and Akhtar v. Minister for Justice and Equality [2019] IEHC 411, Keane J. held that the appropriate test, when reviewing the exercise of executive discretion in refusing to issue a visa, was whether the Respondent had acted in a capricious, arbitrary or unjust manner, this test having been adopted in cases reviewing the executive exercise of power with respect to the temporary or early release of prisoners.
Counsel for the Applicant asserts that this test in effect is the same as the test in O'Keeffe v. An Bord Pleanála [1993] 1 IR 39 and The State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642, in light of Kinahan v. Minister for Justice, Equality and Law Reform [2001] IESC 16, namely whether the decision in question is at variance with fundamental reason and common sense. Counsel for the Respondent demurred from this interpretation of Kinahan drawing the Court's attention to the fact that the reference in the judgment of Hardiman J. to the test in Keegan and O'Keeffe was with reference to what had been submitted to the Court rather than forming part of the ratio decidendi of the Court. Whilst Counsel for the Respondent is correct in the observation regarding the reference being to a submission, rather peculiarly, the...
To continue reading
Request your trial
-
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
...the decision of Keane J. in Akhtar v Minister for Justice [2019] IEHC 411, as endorsed by Burns J. in Basit Ali v Minister for Justice [2021] IEHC 494. 35 In Akhtar, Keane J. observed as follows; “Thus, in the Act of 2006, the Oireachtas has chosen to do a number of things. First, a distinc......