A decision to refuse to renew the work permit of a Malaysian chef has been quashed by the High Court, with the Minister for Business, Enterprise and Innovation being ordered to reconsider its assessment following a legal challenge by the chef’s former employers.
Mr Kok Huo Khong arrived in Ireland in 2013 on a student visa and in 2015 he was employed in the Chinese restaurant Ying and Lip Ltd, where he was eventually promoted to head chef and was granted an employment permit for one year. In July 2017, the employment permit expired, and an application for renewal was submitted 8 days later.
This application was refused on the grounds that Mr Khong had no current immigration permission to remain in the country as his employment permit had expired, and therefore so did his right to remain. It was also stated that the documentation submitted with the renewal application displayed less annual remuneration than was stated on the previous employment permit, and this fell below the minimum wage required by the Employment Permits Act (€30,000 per annum).
Mr Khong’s employer made an application to the High Court on foot of this refusal, asserting that their employee had been paid the minimum required which was truly reflected in his payslips, and attributed the delay in renewing the work permit to the fact that the owner of the restaurant was not in the country due to a family bereavement.
As per the Employment Permits Act, the Minister for Business, Enterprise and Innovation has the discretion to grant or refuse an employment permit on certain grounds. Therefore, the Minister has a duty to consider the individual facts and circumstances of each case. In the case of Mr Khong, the High Court found that the Minister failed in her responsibility to exercise discretion.
The Court declared ‘‘the Minister abdicated her responsibility to exercise the discretion so clearly conferred upon her by concluding that the mere fact that Mr. Khong was technically in the State without permission at the material time meant that an employment permit “cannot be issued”, and likewise when Mr Khong’s employers corrected the issue regarding his wages.
It was ruled that the Minister had failed to engage with Mr Khong or his employers in any meaningful way by failing in her duty to act fairly and with discretion. The decision was subsequently quashed by the Court which ordered for the reconsideration of the renewal.
Click here for the full judgement.