Minister must reconsider refusal of permit for chef, High Court rules

Minister’s failure to engage in ‘any meaningful way’ rendered decision ‘fatally flawed’

High Court judge Seamus Noonan said the Minister ‘abdicated her responsibility to exercise the discretion’ clearly  conferred upon her.

High Court judge Seamus Noonan said the Minister ‘abdicated her responsibility to exercise the discretion’ clearly conferred upon her.

 

A former head chef at a Chinese restaurant who was refused a renewal of his work permit must have his case reconsidered by the Minister for Business, Enterprise and Innovation, the High Court has ruled.

The refusal to renew the permit for Kok Huo Khong was challenged by his now former employer, Ling and Yip Ltd, owners of the Chinese restaurant in Dunboyne, Co Meath.

Quashing the refusal, Mr Justice Seamus Noonan said the Minister, Heather Humphreys, fell into error in concluding she had no discretion to grant the permit. Mr Khong, a Malaysian national, came to Ireland as a student in 2013. In April 2015, Ling and Yip employed him as an assistant chef. He was subsequently promoted to head chef and got a one year employment permit in 2016.

Eight days after that permit expired in 2017, his employer applied for a renewal but was refused. The basis for the refusal was he was in the State without permission and information on his renewal application, in relation to his previous pay, fell below the minimum required under the Employment Permits Act 2006. The general minimum is €30,000 per year.

Mr Khong’s employer argued he had been paid €600 per week (more than the €30,000 pa) and he had the payslips to show it. Although his P60 showed only €11,916 pa for 2016, his employer said the payslips showed the true position. There had been a delay in registering him with the local immigration office as the owner of the restaurant was absent from the State due to a family bereavement, his employer said.

Mr Justice Noonan said, under the Employment Permits Act, the Minister has discretion to grant or refuse a permit. In exercising this discretionary power, the Minister has a duty to consider the individual facts of each case as they arise, he said.

“In the present case, it seems clear to me the Minister abdicated her responsibility to exercise the discretion so clearly conferred upon her by concluding that the mere fact that Mr Khong was technically in the State without permission at the material time meant that an employment permit ‘cannot be issued’,” he said. The Minister’s failure to engage in “any meaningful way” with the explanation offered by the employer rendered the decision fatally flawed, he ruled.