S v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 17 October 2022
• Neutral Citation: [2022] IEHC 578
• Court: High Court
• Docket Number: [Record No. 2020/1040]

Between

S.

Applicant

and

Minister for Justice

Respondent

[2022] IEHC 578

[Record No. 2020/1040]

THE HIGH COURT

Travel visa – Order for certiorari – Duty to give reasons – Applicant seeking an order for certiorari quashing the decision of the respondent refusing the applicant’s appeal for a visa – Whether the respondent failed in his duty to give reasons for his decision

Facts: The applicant, an Indian citizen, was granted a work permit by the Minister for Business, Enterprise and Employment on 18 June 2020. He applied to the Minister for a travel visa but was refused. His appeal was also refused. The applicant applied to the High Court seeking an order of certiorari of the appeal decision of the respondent, the Minister for Justice, of 15 October 2020 to refuse his appeal. The applicant identifies the legal issues as follows: (i) Did the Minister fail to take relevant factors into account or take irrelevant factors into account in coming to the decision of 15 October 2020 to refuse the applicant’s visa application? (ii) Was the Minister’s decision irrational/unreasonable? (iii) Did the Minister fail in his duty to give reasons for his decision in respect of the applicant in the decision? (iv) Is the Minister entitled to supplement the reasons for the impugned decision by affidavit?

Held by Bolger J that the appeal decision was legally flawed. She held that it failed to properly identify sufficient reasons for the decision and a basis for same. She held that it is inappropriate for reasons to be supplemented at a later stage in judicial review proceedings. She held that it failed to rationalise the findings that the applicant would not observe the conditions of his visa, or that the applicant had not provided sufficient evidence that he had appropriate skills, knowledge or experience for taking up the position in Ireland. She held that it failed to give proper consideration to documents submitted, in particular the application form for a work permit filled out by the applicant’s prospective employer in which the function of the applicant’s job and the satisfactory nature of his experience and skills were identified. She held that it failed to rationalise the claimed inability to take account of the applicant’s work references because they could not be checked despite the possible presence of a website address and the definite presence of mobile phone numbers. She held that it unreasonably criticised the applicant for not submitting documentation that was not identified to him in spite of a clear request to do so, that was confusingly identified on affidavit as being contained in a number of different State websites, and which did not require any significant new information over and above what had previously been furnished. She held that it claimed inconsistencies in the information furnished by the applicant, the only identified detail of which was, “contradictions”, which were not identified until affidavits were sworn in the proceedings. The court was not satisfied that any such contradictions could properly or fairly have operated to rationalise the decision; in particular the decision unfairly claimed that the applicant was unable to provide details for basic recipes which he would be required to cook in Ireland and it was common case that the applicant only identified having to cook Indian breads in Ireland and that the prospective employer did not require him to cook any chicken dish.

Bolger J granted the applicant an order for certiorari quashing the decision of 15 October 2020 refusing the applicant’s appeal for a visa and remitting the matter to a different officer of the Minister for reconsideration. As the applicant had succeeded in his application, her indicative view was that costs should, in accordance with s. 169 of the Legal Services Regulation Act 2015, follow the cause and the applicant was entitled to his costs against the Minister.

Application granted.

JUDGMENT of Ms. Justice Bolger delivered on the 17 ^th day of October 2022.

1 The applicant is an Indian citizen who was granted a work permit by the Minister for Business, Enterprise and Employment on 18 June 2020. He applied to the Minister for a travel visa but was refused. His appeal was also refused. The applicant seeks an order of certiorari of the respondent Minister's appeal decision of 15 October 2020 to refuse his appeal. For the reasons set out below I am granting an order of certiorari quashing that decision.

Background

2 The applicant applied in March 2020 for a work permit to take up a position as tandoori chef/chef de partie at the Bombay Palace restaurant in Castlerea, County Roscommon. This application required the applicant to submit various information and documents and for his prospective employer to fill out an application in which they identified the main functions of the job as making speciality tandoori bread requiring skill and expertise in using the tandoori oven and preparing marinades, sauces and doughs for bread. There was no mention of any requirement to cook any chicken dish. The prospective employer confirmed the applicant's many years of experience working as a tandoori chef and their confidence that the applicant had the right experience and skills.

3 The Minister for Business, Enterprise and Employment granted a work permit pursuant to s.8 of the 2006 Work Permit Act on 18 June 2020. To do so the Minister had to be satisfied, pursuant to s.3(a) that the applicant “has the required knowledge and skills for the employment”. The permit relates to employment only and is not a residence permit or a permission to enter Ireland.

4 On 2 July 2020, the applicant applied online for a long stay visa to enable him to take up the job for which he had been granted the employment permit. The application process was delayed due to insufficient documentation. His solicitor wrote on 13 July 2020 submitting various documents and referred to having noted the list of supporting documentation for visas on the website of the Department of Justice and asked the visa officials to contact them if there were any clarifications or additional documentation needed. Further correspondence followed confirming receipt of the documentation and making arrangements for an interview and at no time was the applicant or his solicitor advised of any further documentation that was required.

5 The applicant was interviewed by telephone on 18 August 2020. He was asked what type of food he would be cooking in Ireland to which he replied ‘Indian breads’. He was asked about cooking other dishes including chicken tikka and replied that this part of the cooking was not part of his job as a tandoori chef but that he did have a basic knowledge of this type of cooking, although he was not required by his employers to know this.

6 By letter dated 11 September 2020, the Minister refused the applicant's application for a visa stating as follows:

“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

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.

You have not provided sufficient evidence that you have appropriate skills, knowledge or experience for taking up this position in Ireland. The employer in Ireland has not provided sufficient evidence that they sought skilled candidates from Ireland prior to offering the job to you. Visa officer is not satisfied that you would obey the conditions of the visa if you were issued with one”.

7 The letter confirmed the applicant's right of appeal. The applicant appealed the decision by way of a letter from his solicitor dated 16 September 2020 and email of 17 September 2020. His appeal took issue with the finding that insufficient documentation had been submitted without stating what documentation was missing from the visa application, criticised the refusal letter for not giving sufficient reasons and confirmed that the applicant's solicitors had examined the website which listed documents required to be submitted and could not see any document there that had not been provided. The letter asked the visa appeals officer to explain by return what further documentation was required. They also asked for clarification as to why the visa officer believes that the applicant may not observe the conditions of his visa and highlighted that the applicant had been granted a general employment visa by the Department of Business, Enterprise and Innovation. The applicant's solicitor sent a further email on 14 October 2020 asking that if the office needed anything to let them know. By reply, the visa office confirmed receipt of the appeal and stated that it was under process. None of the replies to the applicant solicitor's correspondence provided either clarification in relation to documentation that was missing or required or details of what part of the application was inconsistent or why it was believed that the applicant may not observe the conditions of his visa.

Appeal officer's decision

8 By letter dated 15 October 2020 the Minister refused the appeal on a similar but not identical basis as the first instance decision. References to the employer's advertisement in the first decision do not appear in the appeal. The “ID”, “INCO”, and “OC” grounds were restated (as quoted at paragraph 6 above) and the letter then expanded:

“You have not addressed the refusal reasons listed on the refusal letter. You have not provided sufficient evidence of the recruitment process and how you got the job. You...