The High Court has quashed a decision refusing a restaurant company’s application to renew an employment permit for its chef, finding that the Minister had treated statutory grounds for refusal as mandatory and had not properly considered the company’s explanation.
Mr Justice Noonan’s judgment, delivered on 4 October 2018, directs that the matter be reconsidered in accordance with the judgment. It does not itself grant an employment permit.
Ling and Yip Limited operates a restaurant in Dunboyne, County Meath. It had employed Malaysian national Kok Huo Khong, first as an assistant chef and later as head chef. A one-year employment permit, which recorded weekly remuneration of €600, expired on 26 July 2017. The company applied for renewal on 3 August, eight days later.
The application was refused in September. The department cited Mr Khong’s lack of current immigration permission and documents which, it said, showed he had received less than the remuneration stated in the previous permit. An internal review was also refused on 31 October 2017. The reviewing officer said an employment permit “cannot be issued” in those circumstances.
The company challenged that decision by judicial review. It argued that the Employment Permits Act gave the Minister discretion to grant or refuse a permit, and that the decision-maker had wrongly treated the cited circumstances as removing that discretion. The company also said its particular circumstances had not been considered.
The judgment records the company’s explanation that Mr Khong’s pay had fallen below the permit amount between July and December 2016, but had been corrected from January. At trial, the company undertook to the court to rectify the shortfall, which the judgment described as approximately €10,000 over the permit period.
Mr Justice Noonan said the Act’s use of “may” gave the Minister discretion, requiring her to consider the individual facts of each case and act fairly. He distinguished Mr Khong’s situation—having entered and worked lawfully for several years, with the employer applying eight days after the permit expired—from other possible cases of unlawful entry or work.
The court found that treating his technical lack of permission as meaning a permit could not issue was legally incorrect. It reached the same conclusion about the remuneration ground. The Minister was required to engage with the company’s explanation and, if rejecting it, give reasons.
The court concluded that the decision was flawed because the Minister had failed to exercise the discretion and had not meaningfully addressed the explanation or explained why it was unacceptable. It proposed to quash the refusal and remit the matter for reconsideration.