An Afghan refugee, resident in Pakistan, has recently succeeded in his application to have his employment visa refusal quashed and remitted to another Department of Justice official for reconsidering.
The Applicant was granted an employment permit to work as a Chef De Partie in Ireland in February 2023, but his subsequent employment visa was refused on appeal in December 2023 for the following reasons:
- No evidence of his current or proposed employment in Pakistan or Ireland had been submitted.
- No application letter had been submitted.
- Insufficient evidence had been submitted to demonstrate that the applicant had relevant qualifications or employment experience to undertake the proposed employment in the State.
- No personal financial documentation or business financial documentation had been submitted.
- The applicant’s obligations to return to his home country were not sufficient.
- And the applicant had not satisfied the visa officer that he would observe the conditions of his visa.
However, in his employment visa appeal, the Applicant’s solicitor had outlined and submitted the following:
- An Irish contract of employment was submitted.
- A letter from the applicant’s employer was submitted outlining his experience working there as a Chef De Parti for six years. It was also emphasised that the Irish 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.
- It was explained that his employment in Pakistan was a cash in hand job, therefore no contract of employment, payslips or tax returns were available for submitting.
- It was explained because the applicant was a refugee in Pakistan, he was only permitted to reside there, but not work. Nor was he permitted to open a bank account. Therefore, he was unable to provide any bank statements as requested.
- It was outlined that the Irish employer had paid for the applicant’s flights to Ireland, in addition to undertaking to pay for his health insurance on arrival, and to provide him with accommodation which is something the Irish employer does for all of their chefs. The Irish employer also undertook to pay the applicant a salary advance to cover any additional costs which he may have incurred on his arrival.
- 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.
In her judgement, Ms. Justice Sara Phelan noted the following:
- She was at a loss to understand how the lack of a business email address in the Pakistani employer’s letter being “insufficient to verify the information provided” could not be verified, when all that was required was to pick up the phone or send a letter to the employer with the aim of confirming the truth.
- 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, to the extent that it may have informed their criticism of the Camille Thai job offer.
- The Respondent continued to expect bank statements and tax records from the applicant, despite having been advised that these documents were simply not available, which Justice Phelan viewed as adhering to a fixed view policy to refuse to accept documents other than in the precise form identified on the website.
- The Respondent acted irrationally in refusing to waive the requirement for certain financial proof from the Applicant in circumstances where it was extremely difficult for Afghan refugees living in Pakistan to provide such documentary proofs.
- That the Respondent fettered their discretion to not grant a visa by rigidly adhering to policy and without applying any judgement to allow for the particular circumstances of this case.
- In finding they were not satisfied as to the credibility of the Irish employer, the Respondent discounted all of the substantial documentary proofs provided without providing any rationale or reasons as to what they were actually looking for, thus leaving the Applicant in the unfortunate position of wondering what additional material he could or should have provided.
- A lack of candour on the Applicant’s part was highlighted in that, among other things, his previous student visa refusal indicated he had been living in Afghanistan for over 19 years, which was at odds with his employment visa application which stated he had been resident in Pakistan for 10 years. He also described himself as single in his employment visa application, despite his CV listing him as married. Justice Phelan found it curious that the Applicant did not declare his true marital status, since being married could have worked in his favour in terms of the OB ground.
Overall, Justice Phelan took a broad view of the discrepancies, stating they were not so serious in nature to merit refusing the Applicant’s application. She also stated, by way of a cautionary note, that this judgment should not be taken as being non-critical of lack of candour and in other circumstances, and had she 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 her discretion against the Applicant.
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