High Court quashes employment visa refusal for procedural unfairness and lack of candour, remitting for fresh consideration.

[2025] IEHC 485

THE HIGH COURT JUDICIAL REVIEW Record No. 2024/270 JR

BETWEEN

ABDUL QADOOS MASOOD Applicant -and-

THE MINISTER FOR JUSTICE Respondent

JUDGMENT of Ms Justice Sara Phelan delivered on the 10th day of September 2025

TABLE OF CONTENTS

Introduction .............................................................................................................................. 2

Factual Background................................................................................................................. 2

Procedural Background .......................................................................................................... 9

Discussion................................................................................................................................ 10

Preliminary issue................................................................................................................ 10

Decision-making process ................................................................................................... 12

Can the decision survive on other grounds?.................................................................... 37

Lack of candour ................................................................................................................. 37

Conclusion .............................................................................................................................. 46

Costs ........................................................................................................................................ 46

Introduction

1. This judgment concerns the refusal by the respondent to grant an employment visa to the applicant. And whether the circumstances of such refusal were inter alia in breach of the applicant’s rights to fair procedures and/or whether:

a. the respondent acted irrationally in holding that information provided by the applicant in support of his visa application could not be verified;

b. the respondent fell into error by finding that the applicant did not demonstrate a qualification to be employed as ‘head chef’;

c. the respondent acted arbitrarily and/or irrationally and/or fettered her discretion in counting it against the applicant that he did not submit either a contract (in respect of his then current employment) or any revenue records, in circumstances where the applicant had offered an explanation as to why he did not have such documents.

2. The applicant is seeking an order of certiorari quashing the respondent’s decision refusing the applicant an employment visa in the particular circumstances of this case and an order remitting the aforesaid employment visa application to a different official within the Department of Justice for further consideration. For the reasons set out hereunder, the relief sought is granted.

Factual Background

3. The applicant is an Afghan national, who has been, and still is, residing in Pakistan as a refugee for approximately 20 years.

4. For the applicant to be lawfully employed in the Irish State, he required two authorisations, being firstly, an employment permit and secondly, a visa (often referred to as an employment visa). The authorisations are issued by two different government departments, respectively the Department of Enterprise, Trade and Employment (“DETE”) and the Department of Justice. As of the date of the order of the High Court (15 April 2024) granting leave to issue judicial review proceedings, the applicant was in receipt of an employment permit – valid from 28 February 2023 to 27 February 2025 – but as of the hearing of the judicial review application (08 April 2025), such permit had expired and the applicant had been refused a second employment permit on inter alia the grounds that he had not taken up the first permit. It is clear that the reason why the applicant had not taken up the first permit was that his application for an employment visa had been refused.

5. The respondent’s decision to refuse, on appeal, the applicant’s application for an employment visa (“the impugned decision”) was notified to the applicant by letter dated 04 December 2023. This was the culmination of a process that had commenced when the applicant, on foot of being granted the aforesaid employment permit, applied to the respondent for an employment visa in February 2023. As regards the employment permit, the applicant had been sponsored – by a limited liability company operating a Camille Thai franchise – to come to Ireland to work as a chef de partie on a full-time permanent contract at a given salary, the applicant having experience working as a chef de partie in a restaurant in Peshawar, Pakistan since June 2016. The documentation before the Court identified details such as the applicant’s salary, the name of the restaurant in Peshawar, details of his prospective employer in the State etc, but here (and in other parts of this judgment) such information has been presented in a form that minimises the potential for intrusion upon third parties.

6. The visa application process was completed online by the applicant on 07 February 2023 and the applicant was advised (as stated on the visa application form) as to the documents he was required to bring with him to the VAC (visa application centre, in Islamabad, Pakistan) when he attended for appointment. These documents included “Supporting documents for the relevant visa category” and the applicant was directed to ““www.irishimmigration.ie” “Visas”” for further information regarding the documents to be brought with him to the VAC. The applicant subsequently attended his appointment at the VAC on 13 February 2023.

7. By letter dated 28 February 2023, the applicant’s visa application was refused, with the reasons for refusal at first instance being broadly categorised as:

- ID (Insufficient documentation) submitted by the applicant in support of his application, no evidence of stated employment submitted, no application letter submitted and insufficient evidence submitted to demonstrate that the applicant had relevant qualifications or employment experience to undertake the proposed employment in the State;

- F (Finances) – insufficient or incomplete evidence submitted, no personal financial documentation submitted and no business financial documentation submitted;

- OB (Obligations to return) – the applicant’s obligations to return to his home country were not sufficient; and

- OC (Observe the conditions of the visa) – given that the visa sought was for a specific purpose and duration, the applicant had not satisfied the visa officer that such conditions would be observed.

8. Under cover of letter dated 25 April 2023 from his solicitor, the applicant submitted an appeal, supported by additional (upwards of 20) documents, all of which were exhibited in the applicant’s affidavit more particularly referred to at §18 hereunder.

To explain the absence of personal financial documentation, the applicant’s solicitor set out that:

a. the applicant had a contract of employment with a limited liability company operating a Camille Thai franchise in the Dublin area, dated 27 November 2022 and a copy of the contract was provided;

b. the applicant was currently working as a chef de partie in a restaurant in Peshawar, Pakistan and had been working in that employment since June 2016 and a letter from the applicant’s employer dated 11 October 2022 was provided, which letter confirmed the nature and duration of the applicant’s employment and included the restaurant registration and license number, postal address, email (‘gmail’) address, Whatsapp number and land-line number, and concluded by stating “If you have any question regarding this ref letter please contact us”;

c. the applicant did not have a contract of employment in relation to his employment in Pakistan, nor did he receive payslips, and that the applicant was paid in cash by his employer and, in circumstances where the applicant did not have a bank account in Pakistan, he spent his wages on his daily living expenses;

d. this employment was a ‘cash in hand’ role, the applicant did not pay any tax in relation to same, and he was unable to provide any official revenue documents confirming the tax paid for the stated employment.

9. As regards the specific findings under the F (Finances) heading, the applicant’s solicitor noted that the applicant was unable to submit any documentation with respect to his personal finances and that he was a national of Afghanistan who had resided in Pakistan for approximately 18 years (as of the date of the visa application) as a refugee. A copy of the applicant’s Pakistan Registration Document (‘Registration of Afghan Citizens in Pakistan’) issued on 15 July 2021 was enclosed and the applicant’s solicitor further stated that whilst the applicant was permitted to reside in Pakistan, he was not permitted to work and neither was he permitted to open a bank account. Thus, the applicant had never held a bank account in Pakistan and was unable to submit supporting documentation in that regard. However, the applicant’s solicitor went on to state that the applicant’s Irish employer (“prospective employer”) had undertaken to pay for his flight to Ireland and to pay for his private health insurance policy upon arrival, in addition to providing accommodation to the applicant by way of staff accommodation (located at a specific address, with the owner of the property identified), and that the property had been recently purchased by the prospective employer in order to provide accommodation to his restaurant chefs in circumstances where the lack of affordable rental accommodation in the Dublin housing market had become an extremely prohibitive factor when securing suitably qualified chefs to work for the business. The prospective employer also undertook to make an advanced salary payment to the applicant on his arrival to cover any additional costs which he may have incurred on his arrival.

10. Further, and in relation to the finding that no business financial documentation had been submitted, the applicant’s solicitor enclosed a copy of the prospective employer’s company directors’ report and financial statements for the year ended

31 July 2021, together with a copy of the company’s current account statement with a positive closing balance evidenced.

11. In order to deal with the finding that the applicant had submitted insufficient evidence to demonstrate that the applicant had relevant qualifications or employment experience to undertake the proposed employment in the State, the applicant’s solicitor noted that the applicant was currently employed as a chef de partie in his current employment since July 2016 but that he had no formal training and had gained all of his skills and knowledge through the course of his employment. The applicant’s solicitor further noted that the “Ineligible Category Of Employment” list which appeared on the DETE website stated that as an exceptional circumstance, a chef de partie with two years of experience working in this role, was eligible to be granted an employment permit and that having worked as a chef de partie since July 2016, the applicant had more than sufficient experience for the role and that, for the purpose of issuing him with an employment permit, the applicant had satisfied DETE in this regard. The applicant’s solicitor went on to state that the applicant’s prospective employer was a renowned ethnic restaurant with extremely high standards and a significant reputation to uphold and that the prospective employer had incurred significant expense and time in hiring the applicant and supporting his employment permit and visa application, noting that if the applicant did not possess the skills and knowledge to perform in the role, then he would not have been hired by the prospective employer.

12. Dealing with the reasons given under OB (Obligations to return) and OC (Observe the conditions of the visa), the applicant’s solicitor stated that the applicant had absolutely no intention of overstaying the terms of any immigration permission granted to him or breaching the terms of his visa and that he wished to travel to the State with the primary purpose of pursuing his offer of employment and that he intended to comply with the terms of the visa, work permit, and subsequent immigration permission granted to him at all times.

The impugned decision

13. Following correspondence from the applicant’s solicitor on 24 July 2023, and again on 29 November 2023, requesting finalisation of the appeal and setting out the applicant’s prospective employer’s staff predicament, the applicant’s visa appeal was refused by way of letter dated 04 December 2023. Again, the reasons for refusal by the appeals officer (“the decision-maker”) were broadly categorised under ID, F, and OC but were more detailed than at first instance, given the provision of further documentation during the appeal process. And curiously, the OB category did not feature at all in the impugned decision (for further discussion in this regard, see §82 below).

14. For the category ID (Insufficient documentation), the applicant was directed to the link to “Documents Required” as displayed on the website, www.irishimmigration.ie, and the applicant was advised on behalf of the respondent as follows:

“ - Insufficient documentation submitted in support of the application and/or the quality of supporting documentation submitted in the following areas has diminished the overall strength of your application;

- Insufficient evidence submitted to demonstrate that you have the relevant qualifications to undertake your proposed employment in the State. The only evidence you have submitted in respect of this field is a letter from your stated current employer [name given]. This information cannot be verified and is not deemed to show you are qualified to be employed as a head chef. (emphasis supplied)

- The letter from your stated current employer [name given] has been deemed as insufficient proof of current employment. It is noted that this letter has a Pakistani phone contact number and no business email. This is insufficient to verify the information provided.

- Insufficient evidence submitted of stated employment e.g. contract, 3 consecutive payslips, Revenue documents confirming tax paid for your stated employment.

- Insufficient application letter submitted by the applicant.”

15. For the category F (Finances), the applicant was advised:

“ - No personal financial documentation has been submitted.

As stated in our website:

You must provide an up-to-date bank statement, showing what money has been paid into and out of the account over the last six months, and showing sufficient funds to cover your costs. Bank statements must be on headed paper – internet printouts will not be accepted.

Your name, address, account number and account type must be visible on the statement. Any large lodgements must be explained. If you are sending a bank statement from a deposit or savings account, you must also include a letter from your bank confirming that you are allowed to withdraw money from that account.”

16. For the category OC (Observe the conditions of the visa), the reasons for refusal included:

“ - the visa sought is for a specific purpose and duration: - the applicant has not satisfied the visa officer that such conditions would be observed.

Information supplied by you concerning your personal, economic and family circumstances has been insufficient to fully satisfy the visa officer that the conditions of the visa would be fully observed if granted.

Please note, that while we are aware that you were granted an employment permit by the Department of Business, Enterprise and Innovation, you will note from your grant letter, that it specifically and expressly states that it “relates to employment only and it is not a residence permit or a permission to enter Ireland.” It further states that “Persons who are nationals of countries that are visa required for travel to Ireland must make a visa application”. It goes on to state that “In the visa application you will be required to submit evidence of your professional qualifications, if required, as well as evidence of previous work experience, if required.” ”

17. And the refusal letter then went on to refer to specific case law, before stating:

“A non-national who has been granted a work permit is required to have a visa where the holder of the work permit comes within a class of non-national in respect of whom visas are required by orders made under section 17 of the Immigration Act 2004. Such orders are made by the Minister “for the purposes of ensuring the integrity of the immigration system, the maintenance of national security, public order or public health or the orderly regulation of the labour market or for the purposes of reciprocal immigration arrangements with other states or for the promotion of tourism.” As a Pakistan National, an entry visa for employment purposes is required. In deciding a visa application, the Minister is required to consider all the information available to her in light of the purpose for which visa orders are made, including documentation submitted for the purposes of a work permit where that documentation is relevant to an assessment of a visa application.

It follows, that when, in the exercise of her broad executive power to control immigration, the Minister requires a foreign national, with a work permit, to establish, in order to obtain a visa, that s/he does have the appropriate level of experience for that employment, which is separate to the 2006 Act. Any applicant that is refused on that basis would have been deemed to have failed to disclose appropriate evidence of their skills, qualifications and experience when they submitted their application both at first instance and on appeal.

All evidence submitted has been taken into consideration. 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 onus rests on the applicant to satisfy the Visa Officer that a visa should be granted for the purpose sought.

You should note that only one appeal per application is permitted.

It is however open to you to submit a fresh application and should you decide to do so, I would advise that you address the refusal reasons as outlined in this

decision.”

Procedural Background

18. As stated earlier, the refusal letter was dated 04 December 2023 and the applicant applied ex parte for leave to issue judicial review proceedings on 27 February 2024 (when the proceedings were opened before the Court), and again on 15 April 2024 when leave was granted by Hyland J, whereupon a notice of motion was issued by the applicant, returnable for 10 June 2024. A statement of grounds was filed on 23 February 2024 and the applicant swore an affidavit in support of his application on

15 February 2024 (“the applicant’s first affidavit”). Further, the applicant’s solicitor swore an affidavit on 22 February 2024, as did his prospective employer.

19. A statement of opposition was filed on 07 October 2024, supported by an affidavit sworn by Melissa Brennan, Higher Executive Officer, of the Visa Division, Immigration Service Delivery, Department of Justice on the same date (“MB’s first affidavit”). Ms Brennan raised a number of issues in this affidavit (including a lack of candour on the part of the applicant, in respect of which there is a detailed discussion below from §86 onwards), and a further affidavit was sworn by the applicant on 22 November 2024 (“the applicant’s second affidavit”), in addition to an affidavit sworn on the same date by another solicitor acting on his behalf (“the affidavit of Úna O’Brien”), to deal with these matters.

20. Subsequently, by order of Bolger J on 07 February 2025, the applicant was permitted to file an amended statement of grounds (to inter alia plead that the respondent had ‘unlawfully fettered her discretion’ (in addition to acting arbitrarily and/or irrationally) as more particularly set out at §1 above) and the respondent filed an amended statement of opposition in reply, with both amended statements being filed on 07 February 2025.

21. It should also be noted that a pre-action letter was sent by the applicant’s solicitor to the respondent on 16 January 2024, calling for the impugned appeal decision to be voluntarily withdrawn but the respondent, by way of email of 23 January 2024, declined to do so.

22. Insofar as they are relevant to this judgment, the matters relied upon by the applicant and the respondent respectively in the statement of grounds and statement of opposition are discussed in more detail below.

Discussion

23. I had the benefit of extremely helpful and comprehensive written and oral submissions from counsel for both parties and counsel for the applicant suggested that the following substantive issues fell to be determined:

a. did the respondent bring a lawful assessment to bear on the applicant’s current employment in Pakistan?

b. did the respondent make a valid finding with respect to the credibility of the applicant’s job offer in Ireland?

c. was there any basis for the finding that the applicant would not observe the conditions of a visa?

and if the applicant established an error in the impugned decision, the ancillary issues then to be decided by me were firstly; whether the decision could stand on some other ground/s and secondly; if not, whether relief should be refused to the applicant on candour grounds. Each of these issues are discussed in turn below, following a discussion as regards a preliminary issue raised by the applicant.

Preliminary issue

24. By way of written submissions, the applicant raised, as a preliminary issue, the fact that certain parts of MB’s first affidavit (§17-§22) consisted of argumentative statements and opinion, citing RAS Medical Ltd v. Royal College of Surgeons [2019] IESC 4; [2019] 1 IR 63 (see §95-§96, per Clarke CJ) in support of this submission. Further, the applicant noted that MB’s first affidavit contained adverse commentary (regarding the applicant) and given that Ms Brennan did not possess the requisite means of knowledge to aver to what was taken into consideration, or not, by the decision-maker in arriving at the impugned decision, the applicant submitted that any averments to such effect in her affidavit constituted hearsay.

25. The applicant put the respondent on notice of the foregoing concerns by letter dated

09 December 2024, wherein it was proposed that the objections to MB’s first affidavit be dealt with by way of a preliminary matter at the substantive hearing, this being a more efficient use of resources and avoiding increased costs. The respondent did not demur from this proposed approach.

26. In his oral submissions, and when referring to §17-§22 of MB’s first affidavit, counsel for the applicant contended that, in part, the matters referred to in these paragraphs consisted of post-decision reasoning, such as was rejected in R v.

Westminster City Council Ex Parte Ermakov [1996] 2 All ER 30 (approved inter alia in City of Waterford VEC v. Secretary General of the Department of Education and Science & ors [2011] IEHC 278, per Charleton J at §12; TAR & anor v. Minister for Justice [2014] IEHC 385, per McDermott J at §25; and in MNN v. Minister for Justice [2020] IECA 187, per Power J at §94).

27. The respondent did not specifically oppose the applicant’s submissions on this preliminary issue and I am satisfied on the basis of the jurisprudence of the Irish Courts post Ermakov, and insofar as MB’s first affidavit strays into post-decision reasoning and/or refers to matters not within the deponent’s direct knowledge and/or consists of argumentative statements and opinion, to disregard such elements of that affidavit. As noted by Power J in MNN at §94, “when reviewing a decision, a Court must confine itself to the decision itself and the reasons contained on its face and not permit an ex post facto rationalisation.”

Decision-making process

28. Before going on to look at the decision-making process in detail, it is necessary to consider, in brief, the obligation on the decision-maker to give reasons for his/her

decision. In Mallak v. Minister for Justice [2012] IESC 59; [2012] 3 IR 297, the Supreme Court, per Fennelly J, held at §45 that “the rule of law requires all

decision makers to act fairly and rationally, meaning that they must not make decisions without reasons” and at §67 that “it [was] not possible for the applicant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it is not possible for the courts effectively to exercise their power of judicial review.” However, it is important to note that in Mallak no reasons whatsoever were given for the decision, whilst the present case is somewhat more nuanced and the availability of ‘reasons’, and whether or not they were adequate, is discussed further below.

29. The content of the impugned decision in this case is set out at §13-§17 above and it is worth noting that, when including the header and introductory and closing paragraphs, it is a brief document, at only just over three pages long, with the ID, F and OC sections/discussion amounting to approximately one page. This is of relevance, as explained by Bolger J in S v. Minister for Justice [2022] IEHC 578 at §28 “[w]hilst brevity in a decision may well be praiseworthy, the recipient of a

decision is entitled to understand the decision and reasons for it such as to inform themselves whether and if so how it can and should be challenged” before going on to refer to the dicta of McDermott J in TAR, at §24-§25 which bear repeating:

“24. The shortness of the reasons given render it difficult for the court to understand the basis for the decision and, therefore, to exercise its jurisdiction as to whether the determination was unreasonable within the meaning of the Keegan test. There is no evidence available from the decision-maker as to how or why the extensive evidence advanced on behalf of the applicants fell short of proof on the balance of probabilities that they would return home after their visit. Attempts to identify potential inadequacies that may have formed part of that decision highlight the lack of clarity in the reasons given and render it extremely difficult for the court to exercise its jurisdiction to determine whether the decision was unreasonable or irrational. In particular, it is not possible on the basis of the course of correspondence or the material submitted to ascertain from the course of dealing between the parties or the context in which the

decision was made, what the shortcomings in proofs were and consequently, whether the conclusion reached in respect of the applicants was reasonable. I am, therefore, not satisfied that adequate reasons were furnished to the applicants in this case sufficient to enable the court to exercise its jurisdiction by way of judicial review. …

25. It is well established that the reasons given for a particular decision must be clear and cogent. They should give the applicants such information as is necessary to enable them to consider whether they have a reasonable chance of appeal or judicially reviewing the decision. The decisions should enable the applicants to arm themselves for such a hearing or review and understand whether the decisionmaker had directed his mind adequately to the issue which he had to consider or was obliged to consider, and also to enable the courts to review the decision. The Minister repeatedly emphasised that it was open to the applicants to reapply with additional evidence for a visa. However, in order to know how they might address any suggested deficiencies in their proofs, they would need to know how they fell short of establishing their case if they were to have any prospect of future success. In order to submit a further application, a more detailed explanation of the evidential shortfall would be required if the applicants were to have any prospect of establishing an intention to return home to the standard of probability required by the Minister. In that regard, the court should be circumspect about allowing material gaps in the decision to be filled by evidence or the submissions of counsel made on judicial review (see Mulholland v. An Bord Pleanála (No.2) [2006] 1 I.R. 453 and R. v. Westminster City Council [1996] 2 All. E.R. 302 per Hutchinson L.J. at pp. 309 and 312)”.

30. Lastly and as regards the duty to give reasons, I am mindful of the decision of the Supreme Court in Connelly v. An Bord Pleanála & ors [2018] IESC 31; [2021] 2 IR 752 where Clarke CJ noted at §46:

“… it seems to me that it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a decision-maker.

First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision. Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review.”

Did the respondent bring a lawful assessment to bear on the applicant’s current employment in Pakistan?

31. The applicant sought to evidence his current employment in Pakistan by providing a letter from his employer, the details of which have been set out at §8.b. above.

And the decision-maker concluded, as set out at §13 above, that “[t]he letter from your stated current employer [name given] has been deemed as insufficient proof of current employment. It is noted that this letter has a Pakistani phone contact number and no business email. This is insufficient to verify the information provided.”

32. Counsel for the applicant submitted that in circumstances where the decisionmaker was aware that the applicant had no formal employment documentation (such as a contract of employment or payslips), and thus the letter from the applicant’s employer was a crucial document, there was an obligation on the

decision-maker to actually attempt to verify the information provided by the applicant and this the decision-maker did not do. The letter from the applicant’s employer contained more than sufficient information for the decision-maker to make contact and verify the information provided – and as set out at §8.b above, such letter included a postal address, email (‘gmail’) address, Whatsapp number and land-line number and the letter also invited contact by stating “[i]f you have any question regarding this ref letter please contact us”. The applicant relied on the decision of Bolger J in S in this regard, in which the Court held at §31:

“It was unreasonable for the decision maker to dismiss the applicant’s two work references because of an absence of a website and a claimed inability to check them, in circumstances where one of the written references may have included a website and certainly both included mobile numbers which were not checked by the Minister. No explanation was ever given why the Minister maintained that this meant the references could not be verified and could not, therefore, be relied on by them.”

33. The impugned decision states that a Pakistani phone contact number and the lack of a business email address were “insufficient to verify the information provided”, and I am at a loss to understand what ‘verify’ means, other than for a visa official to actually pick up the phone or send a letter or email to the applicant’s employer, with the aim of confirming the truth of that which was stated in the letter from the said employer. To ‘verify’ is, according to the Collins Online English Dictionary, to “check something is true by careful examination and investigation”. Further, according to the Oxford English Dictionary, in its general use, to ‘verify’ is “to testify to, to assert, to affirm or confirm, as true or certain”, or secondarily, “to show to be true by demonstration or evidence; to confirm the truth or authenticity of; to substantiate” or “to establish by investigation”. Thus, there is an obligation on the decision-maker to take the necessary steps to ‘verify’ (by way of, for example, checking, investigating or confirming) and there is no evidence that the

decision-maker took the necessary – or indeed any – steps in this case.

34. Allied to this is the content of the letter from the applicant’s employer, which stated as follows:

“This letter is to confirm that Mr. ABDUL QUADOOS has been working with us as chef de partie since Jun 2016 till today’s date.

Mr. ABDUL QADOOS started his job with us as trainee, his hardworking dedication and professionalism has made him an excellent team member in our busy kitchen.

His position is full-time and permanent. His annual salary is RS: 50,000. Which is paid on monthly basis in cash.

If you have any question regarding this ref letter please contact us.

This letter is not a simple one-liner, and gives information personal to the applicant which the decision-maker could have sought to substantiate had contact been made with the applicant’s employer.

35. The respondent sought to distinguish S on the basis inter alia that in S it was a letter that could not be verified, whilst in the present case it was the information that could not be verified. I consider this differentiation akin to ‘dancing on the head of a pin’ and at the end of the day, verification is verification – whether it is a letter or information that must be verified, active steps must be taken to ‘verify’ and there is no evidence before me that such steps were taken in the present case. Further, the respondent, again referring to S, noted that in the present case the decisionmaker did not make a “claimed inability to check the references” and that the letter from the applicant’s employer was taken into account, weighed, and found to comprise insufficient evidence of the information provided by the applicant.

However, in my eyes, the statement by the decision-maker in the present case that the letter provided by the applicant’s employer was “insufficient to verify the information provided” is of a more fundamental nature than the actions in S where at least there was a “claimed inability to check the references” – in this case, no evidence of any effort made to ‘verify’ was brought to my attention.

36. Separately, the respondent pleaded at §20 of the statement of opposition that “[t]he Respondent was satisfied that the information concerning the Applicant's employment could not be verified” and yet the impugned decision does not set out any steps taken by the decision-maker to ground this plea, beyond remarking that the decision maker has taken into consideration all documentation and information supplied by the applicant (for a more detailed discussion on this general ‘remark’, see §48 below). It should be noted that the respondent maintained a very clear position on ‘verification’ throughout both oral and written submissions – namely, that finding that a document was insufficient to verify the information goes to the respondent’s discretion to attribute weight to that document. However, there is a circularity to this position that operates to the applicant’s detriment and in circumstances where no ‘verification steps’ were taken by the decision-maker, I do not accept that the decision-maker’s discretion – to attribute weight to the document – was properly invoked.

37. In the absence of positively taking steps to verify the information provided (TAR at §28, per McDermott J that “a letter or phone call or email from the decisionmaker’s office indicating that … some further documentation concerning income would be of assistance might have avoided the unhappy chain of events which led to these proceedings and might, indeed, have addressed and resolved the respondent’s concerns in respect of the applicants”), I am of the view that it was unreasonable for the decision-maker to conclude, without more, that the letter provided by the applicant’s employer was “insufficient to verify the information provided”. It is acknowledged that the respondent sought to distinguish the present case from TAR (where McDermott J held that the reasons were so short he was unable to determine whether they were reasonable) and I was directed to the repeated finding of ‘insufficient evidence’ within the impugned decision as demonstrating a qualitative assessment on the part of the decision maker.

38. During the course of the hearing I raised the issue of ‘internal verification’ as opposed to ‘external verification’ with counsel for the respondent, and counsel submitted that the decision-maker was seeking ‘internal verification’ and that the document did not discharge the burden of proof. However, I cannot understand how the provision of a business email address would constitute sufficient verification in and of itself – this would appear to be what the decision-maker was suggesting in the extract from the impugned decision quoted above – in the absence of the decision-maker taking active steps to, at the very least, send an email to (or otherwise verify) that business email address. Taking the concept of internal verification one step further, any email address that had the appearance of being a business email address – or, as set out in MB’s first affidavit at §19, that had the “indicia of genuine business email accounts” – may have passed muster with the

decision-maker on this basis, irrespective of the fact that such business email address may not have actually existed at all. In other words, had the letter from the applicant’s employer been a forgery (which was not the case made out by the respondent in the present case – see §41 below), then a ‘made up’ business email address could have been quoted and would have satisfied the respondent as to the veracity of the letter and it seems to me that the exercise of the decision-maker’s discretion in such circumstances (i.e., to accept the letter as ‘verified’ by reason of an apparent business email address) would be completely illogical.

39. Additionally, the applicant noted that the respondent, in the statement of opposition at §14, maintained:

“The letter provided by the Applicant does not comply with the requirements of the Respondent as set out in her published policy on employment visas. The Respondent’s policy provides that letters of this nature shall include a business email address but not a gmail address.”

But the applicant drew my attention to an averment in MB’s first affidavit (at §7)

in which it was stated that:

“… it is clearly stated on the ISO website that “All letters submitted from a business, company or other organisation must be on official headed paper so they can be verified, and show the organisation’s:

 Full name  Full postal address  Telephone number (fixed line - not mobile/cell phone)

 Website address  Email address (Yahoo and Hotmail email addresses are not accepted)

 A contact person’s name and title/position

 Written signature of an authorised representative (electronic signature is not accepted).”

Unfortunately, the content of the website as quoted in MB’s first affidavit did not actually feature as an exhibit to that affidavit due to an error and Ms Brennan swore a second affidavit on 21 March 2025 to explain this, and to confirm that “the textual content of [her] first affidavit [was] correct in describing the Respondent’s policy at the material times.” I thus understand the respondent’s policy to be as set out in the website content detailed above and as averred to in MB’s first affidavit.

40. It is clear from the website text as set out in the preceding paragraph that ‘gmail’ addresses are not singled out by the respondent as being unacceptable and no formal policy document or ‘published policy’ was provided on affidavit by the respondent to substantiate the respondent’s position that “[t]he Respondent’s policy provides that letters of this nature shall include a business email address but not a gmail address.” It was the respondent’s position that the averments in MB’s first affidavit (at §19) amounted to ‘evidence’ to the effect that ‘gmail’ addresses were expressly excluded and, such averments were that:

“the Respondent’s position in relation to business letters is that they should be on headed paper; should contain a landline; should include a business email address (yahoo, Hotmail, gmail email address are not accepted). This is based on the Respondent’s experience in dealing with employment visa applications and is in place to combat fraudulent employment letters. It is the Respondent’s view that an email account can be created relatively simply, easily and freely on freely available platforms such as yahoo, Hotmail and gmail and are open to anyone to create. A business email address on a business domain offers some legitimacy and permanency to the claimed employment given such domain emails have to be purchased (i.e. name@starbucks.ie as opposed to starbucks@gmail.com). In the Respondent’s view and experience, these are indicia of genuine business email accounts. These are the general reasons why the Respondent has such a policy rather than any accusation that the Applicant's letter was necessarily fraudulent in this case.”

41. Whilst I do not take issue with the rationale behind the respondent’s policy to “combat fraudulent employment letters” as expressed at §19 of MB’s affidavit – and noting that the respondent by way of MB’s affidavit, and through counsel, was emphatic that she was not accusing the applicant in the present case of any forgery

– I have already expressed the view, by way of determining the preliminary issue, that the respondent cannot avail of post-decision reasoning to explain, for example, the non-acceptance of ‘gmail’ addresses. And even if this were not the case, the only objective evidence of the respondent’s policy was the extract from the website (as more particularly set out at §39 above), which evidenced a policy that did not exclude ‘gmail’ addresses, and a post-decision averment cannot trump this objective evidence. It follows therefrom that there was no rational basis put before me as to why the provision of a ‘gmail’ address should have been considered by the decision-maker to the applicant’s detriment and albeit that the respondent submitted that the policy was lawful and applied lawfully, the policy did not exclude ‘gmail’ addresses and therefore the policy was not applied lawfully.

42. The respondent also relied on the fact that the applicant was, by way of the first instance decision, directed to the documents required of him to support his visa application and that the applicant was on notice of the respondent’s published criteria. Counsel for the respondent referred me to MM v. Minister for Justice [2025] IEHC 102, wherein Bradley J set out at §43 the material contained on the ‘Documents Required’ section of the departmental website (www.irishimmigration.ie). This material is the exact same as that set out at §39 above and, as such and for the reasons as already expressed, this material does not assist the respondent in the circumstances of the present case.

43. In all of the foregoing circumstances, I am satisfied that the respondent failed to give reasons and/or acted irrationally (as pleaded in the amended statement of grounds, legal grounds, §2) when concluding that the information provided by the applicant’s employer in Pakistan “cannot be verified”. And I am further satisfied that the claimed insufficiency of verification tainted the entirety of the impugned

decision, such that the application was not properly considered by the decisionmaker.

‘Head chef’ issue

44. It is also concerning that the decision-maker referred to the letter provided by the applicant’s employer in Pakistan as not deeming “to show you are qualified to be employed as a head chef” in addition to again stating that the “information cannot be verified”. My concerns as to ‘verification’ as discussed above are equally applicable here, but there is also a reference to ‘head chef’ which is incorrect. The applicant’s Irish employment contract (exhibited in the applicant’s grounding affidavit) clearly refers to his position as chef de partie, as does his general employment permit (also exhibited). At no stage, apart from in the impugned

decision, is it ever stated that the applicant was to be employed as a ‘head chef’.

45. This error was raised by the applicant’s solicitor in the pre-action correspondence as referred to at §21 above, but was not actually addressed by the respondent until the statement of opposition was filed and at that stage the respondent pleaded at §23-§24 of the statement of opposition (and again in the amended statement of opposition) that the impugned decision contained a “slip or minor error” and that the said “slip or minor error [was] immaterial and did not operate to the Applicant’s disadvantage”. This error was also addressed in MB’s first affidavit, where it was averred at §17 that:

“… on a fair reading of the Decision, it is clear that the reference to “head chef” in the Decision is slip or minor error. This error had no material impact on the Decision, it did not disadvantage the Applicant in any way and does not in any way detract from the clear and lawful rationale for the Decision. I say that the Decision would and should otherwise read precisely the same if the words chef de partie replaced the words head chef.”

However, for the reasons as expressed at §24-§27 above (the ‘preliminary issue’), I am of the view that the respondent cannot seek to ‘explain away’ this error as having “no material impact” and neither can Ms Brennan aver to what may or may not have impacted on or affected the decision-maker.

46. As to its materiality to the judicial review application, the applicant quite fairly accepted that had this error been the single issue in the impugned decision it may not have rendered the decision invalid, but clearly the decision is being impugned on more grounds than just the ‘head chef’ issue and the ‘head chef’ issue is of relevance to the consideration given by the decision-maker ‘in the round’ to the application. In some instances a visa application may be predicated on the visa applicant fulfilling a particular position requiring specific expertise and experience and the level of detail to be provided would have to be commensurate with that position (i.e., an application for a head chef would be more detailed that for a chef de partie).

Lack of documentation

47. Having criticised the documentation actually provided by the applicant, the

decision-maker then went on to criticise the lack of other documentation (see §13- §16 above) and the impugned decision does not demonstrate that the decisionmaker considered the applicant’s particular circumstances in sufficient detail to warrant the decision ultimately arrived at. In this regard, the applicant relied on the decision of Barrett J in Vishteh v. Minister for Justice [2019] IEHC 131 where the Court held at §4(1) that “for the Minister to insist on the provision of something that, through no apparent fault of an applicant, proves impossible for him to provide, is to descend into the arbitrary/autocratic, effectively requiring [the applicant] to do the impossible if he wishes his application to be in with a chance of success” in submitting that it was arbitrary and/or irrational for the decisionmaker to count it against the applicant for not submitting a contract in respect of his current employment or any Pakistani revenue records when the applicant had explained that he did not have such documents. For her part, the respondent sought to distinguish Vishteh, arguing that the decision-maker had assessed the materials by reference to materials submitted and found that they were insufficient to prove the information submitted by the applicant. However, for the reasons as expressed at §43 above, I do not accept the respondent’s position in this regard.

48. I, of course, acknowledge the presumption that material has been considered by the

decision-maker if the decision-maker states to that effect, in line with the statement of Hardiman J in GK v. Minister for Justice [2002] 2 IR 418, 427 that an applicant must produce “some evidence, direct or inferential”, of a claim that “a decision making authority has, contrary to its express statement, ignored representations which it has received” before such applicant can be said to have an arguable case (as followed inter alia by Bolger J in S, at §37 and by Faherty J in AA & ors v.

Minister for Justice [2024] IECA 57, at §97).

49. GK was also discussed more recently by the Supreme Court in Rana & anor v.

Minister for Justice [2024] IESC 46, where O’Malley J noted at §92-§93:

“The decision of this Court in G.K. makes it clear that a statement by a decisionmaker that they have considered all the material put before them is sufficient, without further affidavit evidence, unless there is some evidence-based reason to think that they did not. I do not see Balz as affecting this principle. The Inspector in Balz did not claim to have considered the scientific material before him – on the contrary, he stated that it was not a relevant consideration. The Board’s general statement to the effect that it had considered what it should have considered, and had not considered matters that it should not, was hardly apt to cover a situation where the particular material had been seen by the Inspector as something that should not be taken into account. The appellant is, therefore, correct in saying that Balz is an example of the G.K. principle and not a reversal or variation of it.

I would therefore hold that it is not, in general, necessary to support a statement that all material has been considered with further evidence to prove the veracity of the statement. Such a statement differs materially from the statement condemned in Balz. This does not, of course, exclude the possibility of cases where a particular feature demonstrates that the statement is unlikely to be completely correct. The point is that decision-makers in this form of process are not required to list out everything that has been put before them and address each aspect individually.”

But, in the present case there is no reference at all to the applicant’s particular circumstances, and the decision-maker continued to expect bank statements and tax records from the applicant, despite having been advised that these documents were simply not available. Thus, this is not so much a case of a decision-maker failing to have regard to a document, but rather of a decision-maker adhering to a fixed policy to refuse to accept as probative, documents other than in the precise form identified on the website. The decision-maker did not ignore or overlook the document, rather s/he applied an automatic rule which resulted in the document being afforded no weight.

50. This expectation was continued to the very conclusion of the impugned decision (see §17 above) where the decision-maker advised the applicant that it was “open to [him] to submit a fresh application and should [he] decide to do so… [he was advised to] address the refusal reasons as outlined in this decision.” It must be said that this ‘advice’ rings very hollow when it was clear that the decision-maker had been advised by the applicant’s solicitor that the documentation was simply not available (and, by extension, would never be available) and thus, an inference may be drawn from the decision-maker’s conclusion – “[i]nsufficient documentation submitted in support of the application and/or the quality of supporting documentation submitted in the following areas has diminished the overall strength of your application” – that the decision-maker simply ignored the applicant’s representations in this regard and/or did not properly consider the material put before him/her. Thus, it is my view that the statements in the impugned decision that “[a]ll evidence submitted has been taken into consideration” and “[t]he visa officer has considered the evidence supplied” are nothing more than “administrative throat-clearing” (per O’Donnell J in Balz & anor v. An Bord Pleanála [2019] IESC 90; [2023] 3 IR 751, at §47 and see also BAC v. IPAT [2024] IEHC 297, at §7.1, per Gearty J) and in the circumstances of this case, the decision-maker did not have due regard – or indeed any regard – to the applicant’s circumstances and thus acted irrationally and/or arbitrarily.

51. In reviewing the Country of Origin Information (“COI”) as provided by the applicant’s solicitor on affidavit (see §90 below), it is clear that it supports the applicant’s position that he is unable to legally work and the May 2022 European Union Agency for Asylum report at p.78 (section 3.2 entitled ‘Employment’) states “[i]n January 2022, the DFAT [Department of Foreign Affairs and Trade, Australia] stated that PoR cardholders and ACC holders cannot legally work and many work in the informal economy.”.

52. However, the COI (May 2022 European Union Agency for Asylum report, p.88, section 3.3.4 entitled ‘Access to financial and communications services’) does not fully support the applicant’s position that he could not open a bank account – but it would appear to be extremely administratively difficult to do so – and the report states inter alia that “the SDPI [Sustainable Development Policy Institute, Pakistan] noted that despite this change in policy, many banks were reluctant to open bank accounts for Afghans”. That said, the respondent did not raise this discrepancy as an issue but rather submitted that the fact that the applicant had alleged to be paid in cash, without a bank account, without permission to work and without tax records, did not compel the respondent to waive the requirement to evidence applications and to find in the applicant’s favour. For the reasons as already set out, I do not accept this submission.

Fettering of discretion

53. Allied to this conclusion is the amended plea allowed by the Court (see §20 above)

that the respondent ‘unlawfully fettered her discretion’ by adhering to an inflexible policy of requiring additional financial, employment and tax records of the applicant despite his circumstances, as an Afghan refugee in Pakistan. It cannot be gainsaid that, whilst a fixed policy has its advantages in terms of certainty, as conceded by the applicant in oral submissions, a decision-maker cannot improperly fetter their discretion as to how to exercise the power in question and in Mishra v.

Minister for Justice [1996] 1 IR 189, 206 Kelly J held, in the circumstances of that case, that “care must be taken to ensure that the application of [the] policy or rules does not disable the Minister from exercising her discretion in individual cases. In other words, the use of a policy or a set of fixed rules must not fetter the discretion which is conferred by the Act. Neither, in my view, must the application of those rules produce a result which is fundamentally at variance with the evidence placed before the Minister by an applicant”. In this regard, the applicant also drew my attention to Wade, Forsyth and Ghosh, Wade and Forsyth’s Administrative Law, 12th Ed. (OUP, 2023), where it is stated at p.267 that “an authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance” and the issue was also more recently considered by the High Court in GW v. Commissioner of An Garda Síochána [2025] IEHC 336, where Phelan J, albeit refusing the reliefs sought in that case, noted at §31-§32 that:

“There is no impediment to decision-makers adopting or being guided by general policies, not least as a means of promoting the consistent and proper exercise of a statutory discretion by different decision-makers, provided the policy is not operated in a manner which disables the discretion. While it is open to decision-makers to be guided by general policy considerations, when identifying guiding principles in a policy document, care is required to ensure that general policy matters are informed by a correct interpretation of the law and do not operate in practice to improperly bind the decision-maker. This is necessary to safeguard against introducing a legal frailty in the decisionmaking process.

Whether there has been an improper interference with a statutory discretion is a question which cannot be divorced from the facts of a given case. In every case of challenge to the lawful exercise of discretion, the factual basis upon which the discretion in question has been exercised requires to be established.

Where it is contended that the decision is vitiated by the inflexible application of an unlawful policy or mistake of law, it is necessary that the facts establish that the said policy or error of law impacted on the decision, before considering whether the policy itself was unlawful either in its terms or in its application.”

54. The respondent argued that it was clear that the decision-maker engaged with the documents submitted by the applicant and that such documents were not excluded and, relying on Rana, in circumstances where the only proof of employment was the letter from the applicant’s current employer, there was no fettering of discretion. Whilst I do not reject the submission as regards non-exclusion of documents, it is the decision-maker’s failure to engage with the representations made on behalf of the applicant and the applicant’s particular circumstances with which I take issue. No evidence was put before me that the decision-maker addressed their mind to the particular circumstances of this case, such that the inability of the applicant to provide the required documentation was considered appropriately – if at all – and it seems to me that the decision-maker incorrectly applied the respondent’s policy as if it had the full force of law (per Clarke J in Crawford v. Centime [2005] IEHC 328; [2006] 2 IR 106 at §34, when discussing guidelines issued by the Revenue Commissioners, “[i]t is, however, the elevation of any such guidelines to matters which are applied as if they have the force of law that is open to serious question”).

55. The applicant also referred me to Hare, Donnelly, Bell eds, De Smith’s Judicial Review, 9th Ed., (Sweet and Maxwell, 2023) at §11.002 where the authors state:

“A decision-making body exercising public functions which is entrusted with discretion must not disable itself from exercising its discretion in individual cases. It may not “fetter” its discretion. A public authority that does fetter its discretion in that way may offend against either or both of two grounds of judicial review: the ground of legality and the ground of procedural propriety.

The public authority offends against legality by failing to use its powers in the way they were intended, namely to employ and to utilise the discretion conferred upon it. It offends against procedural propriety by failing to permit affected persons to influence the use of that discretion. By failing to “keep its mind ajar”, by “shutting its ears” to an application, the body in question effectively forcloses participation in the decision-making process.”

56. No issue was taken by the applicant with the fact of the respondent having a policy, and indeed as mentioned above it was accepted by the applicant that the existence of a policy was preferable so as to ensure consistency, such a policy does not have a statutory basis or force of law – whilst “regulated to a limited extent by statute [Immigration Act 2004, s.17], a visa arises from the executive power of the State and not from any statutory authority” (see Olakunori (a Minor) & ors v. Minister for Justice [2016] IEHC 473, §19, per Humphreys J) – and therefore cannot be treated as final and conclusive when considering any particular applicant’s application. The applicant also accepted that the respondent had a discretion to grant or not grant a visa, whilst noting that the respondent’s policy in this regard must be lawful, and it is my view that it is in the slavish or rigid adherence to such policy, without applying any judgment to allow for the particular circumstances of this case, that the respondent has fettered her discretion. At all times, by reference to De Smith, the decision-maker must “keep its mind ajar” and must not “[shut] its ears” to an application” if the decision-making process is to be lawful and if it is to maintain procedural propriety, and it is clear to me that the decision-maker in the present case failed to keep his/her mind ajar and failed to keep his/her ears open as regards the applicant’s particular circumstances.

57. It was urged upon me on behalf of the respondent that I should be wary “of attempts to pull apart the Decision piecemeal”, but it seems to me that the impugned

decision must stand or fall on the basis of its contents and there is nothing “piecemeal” about the applicant’s complaints. It was submitted on behalf of the respondent that:

a. the weight to be attributed to a document is a matter for the decision maker, not the Court (see Eco Advocacy CLG v. An Bord Pleanála [2025] IEHC 15, at §63(v) per Humphreys J);

b. irrationality is a high bar (see DK v. The International Protection Appeals Tribunal [2020] IEHC 14, at §7 per Humphreys J) and c. the decision must fly “in the face of fundamental reason and common sense”

(see AA, at §45).

Each of these propositions must be applied to the facts of this case, and it is in this analysis that the respondent’s arguments fail to find merit.

58. Of course it is the case that “the weight to be given to the evidence is quintessentially a matter for the decisionmaker” (Eco Advocacy, per Humphreys J at §63(v)) and in this regard, counsel for the respondent submitted that the finding of insufficiency of evidence was tied to the respondent’s discretion to attribute weight to a certain document. However, in the circumstances of this case the

decision-maker had regard to a policy consideration that was not objectively before me (i.e., that a ‘gmail’ address was not acceptable) and no effort was made by the

decision-maker to ‘verify’ the contents of the letter from the applicant’s employer in Pakistan. Thus, it is the actions of the decision-maker that fall to be considered in the present case and, for the reasons expressed, those actions deprive the

decision-maker of legitimacy in terms of attributing weight to the evidence.

59. In respect of irrationality, counsel for the respondent submitted firstly, that the ultimate findings in the impugned decision flowed from the conclusion regarding the insufficiency of evidence, as well as the overall strength of the application, and were therefore entirely rational and secondly, that the aspect of the impugned

decision that dealt with the applicant’s current employment did not fall foul of the reasons requirement, in that it successfully disclosed the “essential rationale” of the decision (per Clarke J in Connelly at §42, adopting the dicta of Murray J in Meadows at §93).

60. The concept of irrationality being a high bar is rooted in the acceptance in Meadows that the O’Keeffe standard is not obsolete and may still apply where it is the

decision of an expert body, such as in the planning and development context (per Denham J, at §119). In LTE & anor v. Minister for Justice [2022] IEHC 504, a case that also involved a judicial review challenging a visa appeal refusal, Heslin J noted at §79 that “[t]he onus rests on the Applicants to demonstrate that the

decision itself is fundamentally at variance with reason and common sense (considering in this analysis the principle of proportionality as articulated in

Meadows v Minister for Justice [2010] 2 IR 701).” And, in Meadows, Murray CJ noted at §54-§57:

“[55] In reviewing the rationality or otherwise of the decision it remains axiomatic that it is not for the court to step into the shoes of the decision maker and decide the issue on the merits but to examine whether the decision falls foul of the principles of law according to which the decision ought to have been taken.

[56] In doing so the court may examine whether the decision can be truly “said to flow from the premises” as Henchy J., put it in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 If not it may be considered as being “fundamentally at variance with reason and common sense”.

[57] In examining whether a decision properly flows from the premises on which it is based and whether it might be considered at variance with reason and common sense I see no reason why the court should not have recourse to the principle of proportionality in determining those issues.”

61. And, for the reasons expressed earlier, I am of the view that the applicant has satisfied the onus in the circumstances of this case and the impugned decision cannot be truly said “to flow from the premises” and it is thus “fundamentally at variance with reason and common sense”.

62. Therefore, and to answer the first question posed by the applicant, I am of the view that the respondent did not bring to bear a lawful assessment on the applicant’s current employment in Pakistan.

Did the respondent make a valid finding with respect to the credibility of the applicant’s job offer in Ireland?

63. The second question to be considered is, whether the respondent made a valid finding with respect to the credibility of the applicant’s job offer in Ireland?

64. The decision-maker noted (see §17 above) that “[a]s 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”. This observation was made notwithstanding the fact that inter alia the following documents had been submitted to the respondent:

a. a general employment permit from DETE, with the name of the applicant’s prospective employer noted thereon;

b. a letter of (job) offer from the applicant’s prospective employer dated 16 January 2023;

c. a letter from the applicant’s prospective employer, on company headed notepaper, quoting the company registered number and a business email address, setting out inter alia that

• “my company will provide accommodation for [the applicant] in my company owned house”,

• “I am really short of skilled chefs to run my restaurants which are based in Dublin 17 and this shortage of skilled chefs is badly damaging my businesses. To avoid any loss of skilled chefs my company recently purchased this house to facilitate our staff and to avoid any turnover of skilled chefs because of accommodation problems” and

• “I would request you to please grant [the applicant] his employment visa as my company has spent a lot of money and time on his hiring via Hospitality Recruitment a recruitment company based in Dublin 4. I really need his skills to run my restaurants.

Should you have any queries please do not hesitate to contact me.”

d. a contract of employment signed by the applicant and his prospective employer on 27 November 2022;

e. a ‘job listing’ on Hospitality Recruitment (hospitality.ie) on 05 October 2022, advertising the position of chef de partie;

f. an advertisement in The Sun newspaper on 07 October 2002, 08 October 2022 and 09 October 2022;

g. an advertisement on the Camille Thai website in September 2022;

h. a copy of the limited liability company’s directors’ report and financial statements for the year ended 31 July 2021, together with a copy of the company’s current account statement with a closing balance of (six-figure sum evidenced), as referenced at §10 above;

i. a copy of the contract for sale regarding the property referred to at §64.c above.

65. The respondent pleaded at §10 of the amended statement of opposition that “[t]he Respondent did not identify or hold a free-standing concern about the Applicant’s proposed employment which was isolated from the concerns and reasons raised in the Decision, including her concerns as to the overall strength of the application and the insufficiency of documentation provided”. But this is not what I understand from the impugned decision, and the reference to the “credibility of your proposed employment in Ireland” arises quite separately from the other concerns expressed by the decision-maker under the headings ID, F and OC.

66. Furthermore, in MB’s first affidavit, it is averred (at §21) that:

“on a fair reading of the Decision it is clear that the expressed concern about the credibility of the Applicant’s proposed employment in Ireland derived from the concerns articulated in the Decision which diminished the overall strength of the application. The Applicant is wrong to attempt to read this finding in isolation from the rest of the Decision in order to suggest that this was effectively an isolated concern unrelated to the other expressed concerns in the Decision.”

However, as discussed earlier, the respondent cannot subsequently seek to justify the reasoning of the decision-maker and I am not at all satisfied that this is not a free-standing concern.

67. The impugned decision does not give any reason/s for the conclusion that “the visa officer is not satisfied of the credibility of your proposed employment in Ireland”

and this is notwithstanding the detailed documentation provided by the applicant as regards the job offer. Importantly, in this regard, the documents specified at §64.e-§64.i above are documents that are independent of the applicant and, when allied with the documents specifically related to the applicant, the impugning of their credibility is, quite simply, irrational in the absence of adequate reasons having been given. The decision-maker simply discounted all of the foregoing material without providing any rationale and it was not suggested, for example, that the Irish company did not exist, nor that the documents were forged by the applicant (see also §41 above).

68. Or to put it another way, in the absence of adequate reasons being given, the applicant has been left in the unfortunate position of wondering what additional material he could or should have provided? What documentation was the decisionmaker actually looking for? What documentation would have satisfied the

decision-maker? And this is all the more important when the applicant was advised in the impugned decision that it was “open to [him] to submit a fresh application and should [he] decide to do so,… [he was advised to] address the refusal reasons as outlined in this decision.” Echoing the dicta of McDermott J in TAR, as set out at §29 above, how can the “refusal reasons” be addressed in the absence of adequate information as to what was required in the first place or what would have been considered credible by the decision-maker?

69. The present case may be distinguished from MM, and indeed S, insofar as it appears from those judgments (see, for example, MM, §33 per Bradley J) that certain information was put on affidavit by the respective applicants’ prospective employers subsequent to the decision impugned in those cases – but such documentation had not been before the decision-maker – whereas in this case, the documentation as set out at §64 above was notified to the decision-maker under cover of letter of 25 April 2023 from the applicant’s solicitor and this issue is further addressed at §75 hereunder.

70. Furthermore, I cannot help but take judicial notice of the well-advertised plight of employers in the restaurant and service industry in the State in the current climate (i.e., the difficulty in finding, and retaining, employees) and there is nothing contained in the information from the applicant’s prospective employer that is ‘at odds’ with this plight as I understand it.

71. Quite separately, the applicant submitted that the respondent breached the applicant’s right to fair procedures by failing to give him notice of any credibility concern, whilst acknowledging that not every inconsistency or concern about something that was said or was not said by an applicant needs to be put to them for comment (see S v. IPAT [2025] IEHC 4, at §11 per Bolger J). However, if a matter is likely to have a distinct importance to the determination, then that matter must be fairly put to an applicant so that the applicant will have an opportunity to answer it and in Olatunji v. RAT [2006] IEHC 113, at p.8, Finlay Geoghegan J agreed with the reasoning of Clarke J in Idiakheua v. Minister for Justice [2005] IEHC 150 at pp.9-10 that:

“If a matter is likely to be important to the determination of the [decision-maker] then that matter must be fairly put to the applicant so that the applicant will have an opportunity to answer it … Even if, subsequent to a hearing, while the [decision-maker] is considering his or her determination an issue which was not raised, or raised to any significant extent, or sufficient at the hearing appears to the [decision-maker] to be of significant importance to the determination … then there remains an obligation on the part of the [decision-maker] to bring that matter to the attention of the applicant so as to afford the applicant an opportunity to deal with it. This remains the case whether the issue is one concerning facts given in evidence by the applicant, questions concerning country of origin information which might be addressed either by the applicant or by the applicant's advisors or, indeed, legal issues which might be likely only to be addressed by the applicant’s advisors.”

72. In BW v. RAT [2017] IECA 296; [2018] 2 ILRM 56, whilst the Court of Appeal acknowledged that once an applicant had been given an opportunity to address a

decision-maker’s concern at an early stage (e.g., at first instance) during the

decision-making process, then it was not necessary that the applicant be afforded a second opportunity to address the same concern later in the decision-making process (e.g., on appeal), but Peart J at §42 also expressed that “[i]f the concern is a material concern – one that has the capacity to affect the outcome of the appeal

– then the appellant is entitled to a fair opportunity to address the concern where that opportunity has not already been provided”.

73. Similar concerns were addressed by Barr J in NI (a minor) v. Minister for Justice [2023] IEHC 339 where the Court held at §76 that “[t]o hold against an applicant on the basis of an argument that was never put forward by the applicant, nor was put to her for comment, is in breach of the principles of fair procedures” and in QUA & anor v. Minister for Justice [2023] IEHC 239, Phelan J held at §51 “Not every issue of law or fact will be of such moment as to warrant being expressly raised with applicants before a decision is made. Similarly, not all errors will result in a court intervening by way of judicial review. The error must be sufficiently serious or fundamental as to deprive the decision maker of jurisdiction. Much depends on the impact the error had on the decision arrived at and whether it can be safely concluded that the same decision would have been arrived at notwithstanding the error made because of other standalone justifications for refusal which stand untainted by any flawed findings.”

74. In the present case, the applicant had not provided documentation regarding his employment in Ireland to the visa office prior to the first instance decision issuing (and it should be noted in this regard that the applicant had applied to the VAC in person and without the benefit of legal assistance) and thus it fell to the appeal

decision-maker to consider the materials as supplied by the applicant’s solicitor (and as referenced at §8 and §64 above) for the first time. In such circumstances and given firstly, the decision-maker’s conclusion that “the visa officer [was] not satisfied of the credibility of [the applicant’s] proposed employment in Ireland”

and secondly, my conclusion that this was a free-standing concern, this concern ought to have been brought to the applicant’s attention prior to the appeal being refused. Unfortunately, the applicant was not afforded any opportunity to address this concern and I cannot ignore the fact that, for the purpose of the judicial review proceedings, the applicant was in a position to submit an affidavit from his prospective employer, averring to much of the detail as set out at §8, §9 and §64 above and had the decision-maker raised this concern with the applicant, the applicant may well have been in a position to provide an affidavit in similar terms to the decision-maker which, in the words of McDermott J in TAR at §28, “might, indeed, have addressed and resolved the respondent’s concerns” in respect of the “credibility of [the applicant’s] proposed employment in Ireland.”

75. The respondent took issue with the fact that the applicant had submitted an affidavit from his prospective employer inter alia on the ground that there are limited circumstances in which new material – which was not before a decision maker – can be introduced by an applicant and that such circumstances did not arise in the present case (see Reid v. An Bord Pleanála [2021] IEHC 230, at §33 and §38 per Humphreys J and MM, at §33 per Bradley J). But for the avoidance of doubt, and from my perspective, all that the affidavit from the applicant’s prospective employer in the present case did was provide ‘existing’ information to me on oath, since such material was already before the decision-maker by way of letter from the applicant’s solicitor dated 25 April 2023, or otherwise provided information that was before the decision-maker, such as details of salary contained in the employment contract dated 27 November 2022. Further, I note that certain averments made by the applicant’s prospective employer may be characterised, per Humphreys J in Reid at §41, as “essentially informative rather than evidential”

and by way of example, at §5 of his affidavit, the applicant’s prospective employer states “I am anxious to see the Applicant obtain an employment visa as my company has already spent a lot of time and money on his recruitment and employment permit application (via a recruitment company – Hospitality Recruitment – based in Dublin 4) and I really need the addition of his skills and abilities to help run the restaurants”. This averment, whilst not ‘spelled out’ in the solicitor’s letter dated 25 April 2023, is of informative rather than evidential value, and further, rests upon a number of preexisting propositions.

76. Separately, I must also consider the fact that the decision-maker had made an error (which was not just a “slip or minor error”) regarding the fact that the applicant was to be employed as a chef de partie and not a ‘head chef’ and the extent to which this may have informed the decision-maker’s criticism of the Camille Thai job offer is unknown. But again, and whilst noting that a decision maker is not “expected to assume that [the applicant] was ... qualified” (see AA at §70), if the applicant had been afforded an opportunity to address the veracity of the offer of employment in Ireland, the relevance of the applicant’s qualifications could also have been addressed. Or, to look at this issue another way, the error made by the decisionmaker as regards the applicant’s qualification was “an error of fact” and to that extent, new evidence could have been presented to me (Reid, at §38(vii)) but for the reasons already outlined, I am of the view that the matters averred to by the applicant’s prospective employer are not new ‘evidence’.

77. Thus, and given the foregoing analysis, I am not satisfied that the respondent made a valid finding with respect to the credibility of the applicant’s job offer in Ireland.

Was there any basis for the finding that the applicant would not observe the conditions (OC) of a visa?

78. The last issue to be addressed in this section, then, is whether there was any basis for the finding that the applicant would not observe the conditions of a visa?

79. For ease of reference, the impugned decision noted that the “[i]nformation supplied by [the applicant] concerning [his] personal, economic and family circumstances has been insufficient to fully satisfy the visa officer that the conditions of the visa would be fully observed if granted”. This statement is bland in the extreme and again, to echo the sentiment of McDermott J in TAR at §24, no sufficient background information or reasons are recorded in the impugned

decision such as to enlighten the applicant as to why his visa was being refused on this basis. This leads me to infer that the applicant’s failure to satisfy the decisionmaker regarding firstly, his employment in Pakistan and secondly, his prospective employment in Ireland was also used against the applicant to come to this

conclusion on the OC ground and this is, to use the words of Hunt J in Mukovska v. Minister for Justice [2021] IECA 340, at §43 “a defective chain of reasoning.

There will be many honest and genuine applicants who would fail [the narrow “need” test in that case] who would have no intention of engaging in such misbehaviour. This is another reason to condemn the decision-making process in this case.”

80. That is not to say that the reasons provided by the decision-maker need to be as precise or detailed as would be expected of a tribunal or other body exercising a statutory power, particularly if the exercise of that power resulted in making a

decision which affected a person’s rights (see AA, at §44) – and I accept that the granting of an employment visa does not engage substantive rights – but, in line with the decision of the Court of Appeal in AA, at §45 in acknowledging that “a significant amount of deference must be afforded to the decision maker”, such deference pre-supposes that “a decision-maker will have provided a reason or reasons for the decision that, in the first place, are easily discernible and comprehensible”. No such easily discernible and comprehensible reasons were provided in this case.

81. The respondent sought to rely on the decision-maker’s conclusion that “[i]nsufficient documentation submitted in support of the application and/or the quality of supporting documentation submitted in the following areas has diminished the overall strength of your application” and submitted that the applicant’s failure to provide sufficient information concerning his personal, economic and family circumstances was a reason why the decision maker was not satisfied that visa conditions would be observed, but I have already rejected the argument as regards the insufficiency of documentation and such argument cannot save the impugned decision at this stage.

82. There is also another anomaly, not adverted to by the parties during the course of the hearing or by way of written submissions, and that is that whilst OB (Obligations to return) was one of the grounds for refusal at first instance, OB was not included in the impugned decision. The only conclusion I can draw from this omission is that the decision-maker was satisfied with the explanation provided by the applicant by way of letter from his solicitor dated 25 April 2023 as regards OB. However, the letter from the applicant’s solicitor covered OB and OC in the same paragraph and stated as follows:

“OB:-Obligations to return to home Country and Observe the conditions of the visa The Applicant has absolutely no intention of overstaying the terms of any immigration permission granted to him or breaching the terms of his visa. The Applicant wishes to travel to the State with the primary purpose of pursuing his offer of employment and intends to comply with the terms of the visa, work permit, and subsequent immigration permission granted to him at all times.”

And if the decision-maker were satisfied with the explanation provided as regards OB but not as regards OC, the impugned decision ought to have set out the rationale for such dissatisfaction. This it did not do.

83. Separately, the applicant pleaded in his statement of grounds (legal grounds, §5)

that he “presented with no adverse immigration history” and that the respondent failed to have proper regard to this factor. For her part, the respondent denied that she failed to have regard to the evidence and submissions concerning the applicant’s immigration history and at §29 of the statement of opposition, the respondent pleaded that she was aware that “the applicant had made and was refused a previous visa application to enter the State”. However, such application and refusal cannot, of itself, be deemed adverse since if it were adverse it would make a nonsense of the standard comment at the end of the ‘refusal letter’ that it was “open to [him] to submit a fresh application”. It would appear that this comment is contained on many ‘refusal letters’ which suggests to me that an

application and refusal, without more, cannot be treated as adverse. And if there is ‘more’, the applicant was certainly not advised of same by the decision-maker.

84. I am thus not satisfied that there was any basis for the finding that the applicant would not observe the conditions of a visa.

Can the decision survive on other grounds?

85. Having found in favour of the applicant on the three issues discussed thus far, I must now consider whether the impugned decision is “capable of standing by reference to any or all elements of the Decision which are unchallenged and/or upheld by the Court” as pleaded by the respondent at §31 of the amended statement of opposition. However, having considered the entirety of the impugned decision, and in light of the recent decision of the Supreme Court in BD & ors v. IPAT [2025] IESC 38, where O’Malley J at §84 noted:

“At the level of principle, however, the appropriateness of severance and partial remittal of an administrative decision must depend, in the first instance, on whether the invalid part can be properly re-analysed without also taking into account the elements involved in the part found to be valid.”

it seems to me that the issues discussed above comprise the majority, if not the entirety, of the impugned decision and thus there are no other grounds on which the impugned decision can rely for survival. Or, as argued by the applicant, this is not a case where, if some illegality is found, the impugned decision could still stand on some unchallenged standalone basis; the impugned findings were the critical findings made by the respondent.

Lack of candour

86. Quite separately, the respondent pleaded at §32 of the statement of opposition that the applicant was “not entitled to reliefs arising from his lack of candour and/or failure to explain material inconsistencies in the papers presented to the Court.”

MB’s first affidavit highlighted a number of inconsistencies and, first and foremost, she averred that the applicant had been refused a study visa, to study in the State, in 2016. Whilst the applicant declared this study visa application in his employment visa application (and provided copies of the study visa application and refusal decision with the employment visa application), there are information discrepancies between the two applications, not least of which is that in the study visa application, the applicant stated that he resided in ‘Kabul, Afghanistan’ and that he had been living in Afghanistan for ‘19 years and 5 months’. The date of the application is not clear but is stated to be 08 August 2016 in MB’s first affidavit and thus the applicant had been living in Afghanistan since in or around his birth on 21 February 1997. This is clearly at odds with the applicant’s employment visa application which was submitted on 07 February 2023 and which stated that he was resident in Pakistan for ‘10 years’ (i.e., since 2013).

87. The other ‘inconsistencies’ as noted in MB’s first affidavit at §26-§35 were:

- the applicant’s passport issued from Kabul on 10 November 2015 and the address listed on his passport is an address in Kabul;

- the applicant represented on his first-instance employment visa application form that he was living in Pakistan for 10 years;

- there are various immigration stamps in the applicant’s passport indicating travel between Afghanistan and Pakistan in which a multi entry visit visa was granted by the Pakistani Consulate in Jalalabad, Afghanistan. This visa was issued on 16 October 2017 and was valid to 15 April 2018 and the applicant’s address was listed as Kabul and his occupation was listed as self-employed, rather than chef de partie;

- the applicant described himself as “single” on the visa application yet the CV submitted by him indicated that he was “married”;

- the applicant submitted a “Registration of Afghan Citizen in Pakistan” ID Card and that card was in the name of ‘Qadous Khan’ son of Masood Muhammad, with a date of birth of 01 January 1994, which was inconsistent with the applicant’s stated name of ‘Abdul Qadoos Masood’, with a date of birth of 21 February 1997 (as is evident from his employment visa application). However, it was also noted that the applicant’s photograph was on this card;

- the applicant submitted a Tazkira ID Card Certificate that issued on 03 October 2015 which stated his name as ‘Abdul Qadoos’, with a date of birth of 21 February 1997, and that he was the son of ‘Haji Masood’;

- the applicant claimed in written submissions to the respondent that he was “not permitted to study in Pakistan.” However, the applicant also provided documents indicating that he attained school certificates stating he was in secondary school there [in Pakistan] up to 2013 and attending some form of “intermediate or secondary education” up to 2015;

- on the applicant’s CV he stated that he had a BBA (Finance) issued in 2023 from the University of Peshawar (issued on his 8th semester) – albeit this certificate was not included in his visa application or in his papers to the Court. This appears to be in conflict with the submission that the applicant could not study in Pakistan and it is also difficult to see how the applicant could have been working as a chef de partie since 2016 in a full time capacity if he were also studying.

88. Ms Brennan then goes on to aver at §37-§38 that:

“I wish to make absolutely clear that these are not reasons why the appeal was refused however they are factors which appear to me to be relevant to the within application for judicial review, in particular, having regard to the necessity to ensure that all relevant facts are before the Court and are correct and having regard to the Practice Direction 81.

Having regard to the foregoing, it appears to me that the Applicant has either been lacking in candour in his application to this Court and/or the papers before the Court contain prima facie inconsistencies which require explanation by the Applicant having regard to the applicable practice direction.”

and aligned with this is the applicant’s submission that the matters raised in MB’s first affidavit could not be used to defend the impugned decision.

89. The applicant swore an affidavit on 22 November 2024 to deal with the foregoing inconsistencies and his explanations were:

- as of the date of the study visa application in 2016, his English “was not as good then as it is now”. He was applying for a visa to learn English at a college in Dublin and his cousin completed the application form for him. He did not know why his cousin recorded his address as being in Kabul,

Afghanistan or why his cousin stated that he had been living in Afghanistan for 19 years. The applicant averred that he was living in Peshawar, Pakistan in 2016 when the visa application was being made and he regretted that the wrong information about his whereabouts was given to the Visa Section in the application. The applicant then apologised for what happened;

- as regards his passport issued from Kabul on 10 November 2015 and the address listed on his passport being an address in Kabul, the applicant averred that he did not see where a Kabul address was recorded [neither do I, having reviewed the passport which was exhibited in the applicant’s first affidavit] and he further averred that he was living in Pakistan at the time;

- regarding the statement on the visa application form dated February 2023 that he was living in Pakistan for only 10 years, he could not explain it other than it was a mistake and he should have said 19 years, since he had been living in Pakistan since he was either 7 or 8 years old. In 2023, he had been living in Pakistan for about 19 years;

- the passport stamps indicating that he had travelled between Afghanistan and Pakistan were true and he made a number of trips from Pakistan to Afghanistan in 2018 but he was living in Pakistan at the time, and was working as a chef de partie at the restaurant in Pakistan;

- regarding the discrepancies in marital status, the applicant indicated that he had married his wife in 2021 and the record of ‘single’ in his visa application form was a mistake;

- regarding the names on the ID card, the applicant averred that his name was ‘Abdul Qadoos Masood’ and his date of birth was 21 February 1997 and that his photograph was on the ID card. The applicant clarified that the ID card was a document which was issued by the UNHCR office in Pakistan to Afghan refugees and it was known as a ‘POR’ (proof of registration) card, before going on to state that there was no good explanation for why his name and date of birth were not written down properly – this was just how the document was furnished to him and he had no control over what was put on it. Since this was raised as an issue , the applicant had been able to obtain a modified ID card from the UNHCR which he exhibited in his affidavit. The date of issue on that card remained recorded as 01 July 2021 but was issued to the applicant in 2024. The applicant explained that he had recently visited the UNHCR office to request a letter confirming the card modification and he endeavoured to explain UNHCR difficulties regarding modification before concluding that “[t]he current project for issuing POR cards to Afghan refugees in Pakistan is set to conclude in four months, after which further actions regarding renewals may only occur with a new decision from the UNHCR, potentially in 5 to 6 years. The UNHCR office in Pakistan has no software to change a father’s name on POR cards right now. I am told that they cannot change this until a new policy.”;

- the discrepancy as regards him not being able to study in Pakistan arose due to a misunderstanding with his solicitor and he never wished to make the claim that he was not permitted to study in Pakistan, but rather that he had studied in Pakistan and that Afghan refugees could only study in Pakistan at a private college, not in a government-funded college;

- lastly, the applicant averred that he knew that mistakes were made in some of his documents but he did not believe that he lied about anything and that the situation of an Afghan refugee was very difficult in Pakistan, depending as it did on the policies of any newly elected government to give the millions of Afghan refugees in Pakistan any rights or not.

90. The applicant’s solicitor also swore an affidavit on 22 November 2024, apologising for the confusion regarding whether or not the applicant had studied in Pakistan, before going on to exhibit certain documentation regarding:

- the POR Card (from the UNHCR website, on 21 November 2024 – noting how there are ‘PoR Card Modification centres’ (PCM centres) whose tasks include the modification of previously issued PoR cards, and that such modifications may involve: “correcting data recorded on existing PoR cards, e.g. regarding the names of cardholders and their immediate family members as well as age, gender, marital status, address and photo”);

- the situation of Afghan refugees in Pakistan (from the European Union Agency for Asylum, in May 2022; and an Amnesty International Article from

20 June 2023 entitled “Pakistan: Government must stop harassing and arbitrarily arresting Afghans seeking refuge” – referring to bureaucratic hurdles faced by Afghan refugees in Pakistan and in particular reports on the long waiting times and sluggish response of the UNHCR in Pakistan);

- access to Pakistani citizenship (from the European Union Agency for Asylum, in May 2022 – noting that the Pakistan government’s ‘Comprehensive Policy on Voluntary Repatriation and Management of Afghan Nationals’ includes stricter implementation of immigration laws along the Afghan-Pakistan border, requiring registered refugees to hand in their PoR cards prior to returning to Afghanistan and to apply for a visa to re-enter Pakistan); and

- an Amnesty International Article from 11 June 2024 entitled “Pakistan: Oneyear extension of UN-registered Afghan refugees a welcome first step, lifeline must extend to all” – extending PoR cards to 30 June 2025.

91. Counsel for the applicant submitted that the applicant had responded to the identified inconsistencies (with varying degrees of success) by way of replying affidavits from both the applicant and his solicitor and that it was not the function of any Court to resolve such conflicts of fact in a judicial review context, before going on to submit that the bearing these issues will have, and the force of the applicant’s responses to them, are matters for the respondent to weigh up and decide in the context of any future decision-making process. In other words, all identified inconsistencies could be teased out properly upon remittal. And whilst of course it is far preferable that a Court would not engage in resolving conflicts of fact in the course of judicial review proceedings, it is open to a party to serve a notice of intention to cross examine in accordance with RSC O.40, r.36 if, for example, the bona fides of the opposing party are in question (see State (Furey) v.

Minister for Defence [1988] ILRM 89, 92 per Griffin J and 95-96 per McCarthy J as referred to in Hogan and Morgan, Administrative Law in Ireland, 4th Ed., (Round Hall, 2010) at §16-90 – this the respondent did not do in the present case.

92. In discussing the foregoing issues with counsel for the respondent during the course of the hearing and on the basis that the lack of candour came to light following the application for leave to issue judicial review proceedings – and, as such it was not something to which the decision-maker had regard – counsel for the respondent accepted that the lack of candour did not fit into my analysis of the decisionmaking, but rather it was to be considered as a free-standing issue on which the exercise of my discretion was required and the respondent maintained that it was a serious issue for the applicant. Counsel for the respondent fairly indicated to me that he was not making an issue regarding the Kabul address or the travel stamps on the applicant’s passport, but that he was relying on the other inconsistencies as brought to my attention, regarding residence, marital status and date of birth and that these were no trivial matters, but rather matters that infected the factual basis on which the applicant applied for the employment visa.

93. I cannot ignore the fact that the applicant, in his affidavit grounding his application for judicial review, verified all statements in the statement of grounds and confirmed that all statements made to immigration bodies in the State were the truth. The applicant now accepts that this is incorrect and that there are material factual errors or inconsistencies in the applicant’s employment visa application.

This is not ideal to say the least and it should not be the case that any decisionmaker should have to weigh up and decide on these inconsistences in the context of any future decision-making process – these inconsistencies should not have occurred in the first place. However, that is not the end of the matter.

94. Clearly, relief may be refused on discretionary grounds if there are compelling reasons to believe that ordering a reconsideration would make no practical difference to the end result (see Smith & ors v. Minister for Justice [2013] IESC 4, at §6.2 per Clarke J where the Court stated “[o]n the facts of this case, it seems to me that the trial judge was entitled to consider whether, as a matter of practical reality, there would be any point in referring this matter back to the Minister to reconsider.”). And the applicant, referring to PNS & anor v. Minister for Justice [2020] IESC 11; [2024] 1 IR 566 argued that a Court should be reluctant to exercise this discretionary power (see, at §97 per McKechnie J noting that “[t]here can be no doubt but that a judge’s capacity to condemn abusive conduct by the exercise of discretion is fundamental to the functioning of any legal system” and at §100 “given the clear desirability of reaching a conclusion on the facts and the law, particularly where the asserted right is EU derived, a court should be reluctant to exercise this power unless quite satisfied that it should do so”). However, it must also be noted that in PNS the asserted right was derived from EU law, which does not apply in the present case and the views of McKechnie J must be viewed in this light.

95. Further, Bingham LJ has argued extra-judicially (see Bingham L.J., ‘Should Public Law Remedies be Discretionary?’ [1991] Public Law 64) that any such discretion should be tightly controlled and carefully exercised.

96. In MBB & ors v. Minister for Justice [2022] IEHC 279 Heslin J considered the principles applicable to a leave application and the requirements of Practice Direction HC81 (“PD HC81”) and was satisfied that the conduct of the first-named and second-named applicants, including their lack of candour, entitled him, in the particular facts and circumstances of that case, to refuse relief on a discretionary basis. By way of background, PD HC81 refers to matters in the asylum, immigration and citizenship list and provides inter alia at §7.E, as regards ex parte applications, that the Court’s specific attention must be drawn to any significant matter of fact adverse to the applicant’s case for relief. In MBB, Heslin J found that a significant amount of relevant and material information had been omitted by the first-named applicant in his verifying affidavit, including that; firstly, An Garda Síochána had investigated the first-named applicant’s marriage with a third party, and found it to be a marriage of convenience; secondly, a false marriage certificate for the first and second-named applicants had been obtained and supplied to the authorities in Pakistan; and thirdly, on foot of this marriage certificate, a Pakistan Birth Certificate had been obtained for their child, the third-named applicant, in order to facilitate travel to Pakistan. As such, at §75, Heslin J found that the firstnamed and second-named applicants had knowingly given a less than candid account of material facts to the Court and this resulted in the Court refusing the relief sought (see also Kant & anor v. Minister for Justice [2019] IEHC 583;

[2023] 1 IR 765 at §24(iv) per Humphreys J where it was held that “the applicants by their misconduct and/or lack of candour have disqualified themselves from discretionary relief”). In the present case, counsel for the respondent accepted that the respondent did not have evidence that the discrepancies set out in MB’s first affidavit were knowingly withheld from the Court, but equally, the respondent was concerned about the materiality of the omissions, their number and the relatively underwhelming explanations provided.

97. The respondent also observed that there was, a deep absurdity in the approach of the applicant where he could, whilst legally advised, make serious and material factual errors about his background and residence in his visa application, move a leave application on the grounds of incorrect facts, fail to submit sufficient documentary evidence to vouch his visa application and complain to the Court about the decision in the grounds set out. Whilst it cannot be gainsaid that there were factual errors contained in the application, the respondent did not go so far as to maintain that they were deliberate, and separately, I am not at all satisfied (for the reasons set out earlier in this judgment) that the applicant can be criticised for failing to submit sufficient documentary evidence to vouch his visa application. It seems to me that the errors/lack of candour complained of do not go so far as to provide a particular ‘immigration advantage’ to the applicant and in coming to this

conclusion I am very much persuaded by the position of the applicant’s prospective employer – a position that is wholly independent of the applicant himself – and the fact that there is a job waiting for the applicant (leaving aside the fact that the applicant will now have to obtain a further employment permit) should an employment visa be granted to him.

98. Thus, taking a broad view of the discrepancies, I am of the view that there is nothing of so serious a nature contained therein that they, in and of themselves, would merit refusing the applicant’s application. That said, it is curious that the applicant did not declare his true marital status (“married”), since being married could perhaps be considered in his favour in terms of the OB ground, albeit that the OB ground was not in issue in the impugned decision. But having found for the applicant on each of the other grounds, I am not prepared to refuse the applicant relief on the grounds of lack of candour. Needless to say, and as adverted to by the applicant (see §91 above) these discrepancies can of course be considered as part of the further consideration upon remittal.

99. Lastly, and by way of a cautionary note, this judgment should not be taken as being non-critical of lack of candour and in other circumstances, and had I not found in favour of the applicant on all other grounds, the lack of candour would have been of greater significance and may have resulted in the exercise of my discretion against the applicant.

Conclusion

100. I am thus satisfied to grant the applicant the reliefs sought, namely an order of certiorari quashing the respondent’s decision dated 04 December 2023 and an order remitting the aforesaid employment visa application to a different official within the Department of Justice for further consideration.

Costs

101. Pursuant to the provisions of s.169 of the Legal Services Regulation Act 2015, costs should follow the event “unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties”. In circumstances where the applicant has succeeded in his application, and there is nothing of note concerning the particular nature and circumstances of the case, or the conduct of the proceedings by the parties, I am inclined to award the costs of the proceedings to the applicant.

102. However, it is open to the parties to contend for the making of a different form of costs order other than that provisionally proposed and I will hear the parties in relation to the precise form of order to be made. I propose listing this matter, in person, for 10:30 on 16 October 2025 for such purpose.