THE HIGH COURT
JUDICAL REVIEW
[2025] IEHC 352
[Record No. 2022/895 JR]
BETWEEN
NING LIQUN
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
AND
THE MINISTER FOR BUSINESS, ENTERPRISE AND INNOVATION
RESPONDENTS
Judgment of Mr. Justice Micheál O'Higgins delivered on 28th day of May 2025
Introduction
1. This is a judicial review seeking an order of certiorari to quash the decision of the first respondent dated the 11th August 2022, affirming the refusal of an application for a visa to take up employment in the State and imposing a five-year ban on further visa applications.
2. The case raises issues of fair procedures. Furthermore, it concerns a non-statutory scheme involving the exercise of Ministerial discretion; as such, there are no Irish constitutional, European Union or European Convention rights in issue.
3. The applicant is a Chinese national. She applied for a Stamp D work visa within the State and submitted the requisite documents in support of her application on the 20th May 2022. The application was refused by letter dated 24th June 2022. I will refer to this as "the June letter". The reason for refusal stated in the June letter was that the Visa Officer was not satisfied that the current and proposed employment details provided by the applicant were genuine. The letter warned that the provision of false/misleading information was seen as a deliberate attempt to mislead the Visa Officer. The letter stated that, as the applicant appeared to have provided misleading information, she was not entitled to appeal the decision. Furthermore, she signed a document confirming that she understood that the submission of false documentation/information may result in her being prevented from making further Irish visa applications for a period of up to five years. The letter gave her a period of fourteen days to submit any reasons as to why this exclusion period should not be imposed against her.
4. The applicant's solicitor requested a review of that exclusion decision by letters dated 5th and 6th July 2022 on the basis that, to the best of the applicant's knowledge, all documents and details submitted by her were accurate.
5. The solicitor's letters are in substance the same. In material part, they read as follows:
"We are writing to you within these 14 days, to make a submission as to why an exclusion should not be applied to our client, as well as to be able to make an appeal application on behalf of our client, on the basis of a fair procedure.
It is stated by the Visa officer that the 'employer has been contacted by this office to verify the applicant's stated employment'. It goes on to state that:
"The Visa Officer, having compared the responses received by both parties, in addition to paperwork submitted by the applicant, identified a number of inconsistencies in the information presented by both the applicant and the employer."
It is submitted that the employer, namely Cloud Intersoft Limited has confirmed that they have not received any correspondence from the Visa Officer in relation to our client's employment position or indeed any form of confirmation correspondence via telephone, email or any form of communication (please see the letter from Cloud Intersoft Limited dated 29th June 2022 attached).
For this reason, it is submitted that we wish to question as to whom exactly the Visa Officer has contacted in order to "verify" the details of our client's employment. Given the fact that the Visa Officer's claim of our client's alleged "false documentation/information for the purpose of the visa application" relies on the alleged communication with the Cloud Intersoft Limited, if there were no verification communication [sic], the allegation ought to be withdrawn immediately."
6. The solicitor's letter concluded by inviting the Minister to confirm that the exclusion period would not be applicable in the circumstances. The letter also sought an opportunity to appeal the initial refusal decision in the light of the solicitor's submissions.
Impugned refusal letter dated 11th August 2022
7. The solicitor's letters resulted in the Visa Office in Beijing issuing a letter to the applicant dated the 11th August 2022. I will refer to this as "the August letter". The letter stated that the Visa Officer was not satisfied that the concerns raised in the June letter had been addressed sufficiently. Therefore, the proposal to impose a five-year exclusion period was upheld. On that basis, the applicant was informed that she would not be permitted to apply for an Irish visa again until the 10th August 2027. It is this decision contained within the August letter which is challenged in these proceedings.
8. As the language of the August letter is important, I will quote it in full:
"Dear Sir/Madam,
I refer to our letter of 24th June 2022 informing you that Immigration Service Delivery propose to exclude you from making further visa applications for travel to Ireland for a period of up to five years due to the submission of false or misleading documentation/information in support of your visa application. I am to inform you that a decision has been taken to uphold this proposal.
In arriving at this decision, the Visa Officer has noted the contents of your correspondence of 6th July 2022 and the additional supporting material which was provided.
While the applicant has attempted to address the concerns that were raised by the Visa Officer in their correspondence, no new or substantive information appears to have been presented by the applicant to address the issues that were raised by this Office.
The applicant has submitted a long and detailed explanation of the circumstances surrounding their qualifications and employment in China, the interview and selection process for the proposed employment in the State and the telephone calls made by this Office to the applicant. The Visa Officer accepts that the timing of the calls may not have been ideal, however he continues to have concerns in relation to the current employment, around which inconsistencies were noted in relation to salary payments.
It should be noted that this Office did not contact the proposed employer in Ireland, however it did contact the applicant's employer in China. It [sic] from this communication that inconsistences arose. At the outset this office raised concerns in relation to your potential employment in Ireland. The Visa Officer continues to hold concerns in relation to the authenticity of that employer and employment.
Following checks conducted by the Office, the Visa Officer is not satisfied as to the authenticity of Cloud Intersoft. The Visa Officer has serious concerns surrounding the company's website and headed paper and other submitted documents, which do not contain basic elements which would be expected to be included in such media.
It should also be noted that while the issuing of work permits is solely a matter for the Minister for Enterprise, Trade and Employment, the decision to grant a visa and the responsibility for immigration policy in Ireland rests with Immigration Service Delivery who operate on behalf of the Minister for Justice. The work permit system and visa system are different, but operate in parallel to facilitate legitimate travel to Ireland for the purposes of work,
Unfortunately, you have not been deemed to have suitably addressed each of the concerns raised by the Visa Officer. When applying for a visa to travel to Ireland you signed a document confirming you understood that the submission of false or misleading documentation/information may result in such an exclusion period being made.
In conclusion, having full examined your response including additional documents, the Visa Officer is of the view that you have not adequately addressed the concerns raised. As such a five-year ban from making further Irish visa applications will be imposed until the 10th August 2027.
You will not be permitted to apply for an Irish visa before that time.
Yours sincerely,
Visa Office Beijing." (my emphasis)
Summary of the applicant's submissions
9. The applicant submits that the first named respondent breached the principles of fair procedures and natural and constitutional justice, and acted unreasonably and/or irrationally in finding against the applicant on new matters that were not put to her or set out in the initial June decision. She complains that negative findings were made without her being given a fair opportunity to comment on or rebut such allegations. Because they did not appear in the initial June letter, the applicant complains that the allegations in the August letter could not be addressed as she was given no right of appeal.
10. In particular, the applicant focuses on the allegation that the website and headed paper of Cloud Intersoft, her proposed Irish employer, were fraudulent and/or misleading. She maintains that she was entitled to an opportunity to respond to the allegations raised in the August decision, particularly in light of the far-reaching consequences of the imposition of a maximum five-year ban. Separately, she contends that if it was conceived that something was wrong with the employer's website and headed paper, it is unfair that this should be imputed to her.
11. The applicant acknowledges that the first respondent enjoys a broad discretion in the context of visa applications. However, while that may be so, particular care must be taken with respect to findings of fraud or use of misleading documents. Such allegations have grave repercussions for the person concerned, both reputationally and administratively. An applicant's chances of obtaining a visa from any country in the future will undoubtedly be compromised, even beyond the five-year period of the ban.
12. The applicant submits that the first respondent has failed to address or provide guidance/criteria as to what circumstances warrant the exercise of discretion to impose the maximum ban of five years, as distinct from a lesser period.
13. The impugned August decision identifies alleged inconsistencies in relation to salary payments which were never referred to or substantiated previously, as well as concerns regarding the authenticity of the applicant's proposed Irish employer. In the circumstances, it is contended that the respondent should have contacted the proposed employer. Having not done so, it is unfair that the applicant was not given any warning that the company website and headed paper were under suspicion or would be considered fraudulent or misleading.
14. The applicant relies upon the run of the correspondence. Particularly, she relies upon the fact that, as is evident from her solicitor's correspondence of the 6th July 2022, she was under the impression that the imputed discrepancies arose from contact having been made with her proposed Irish employer, and not her Chinese employer. The applicant was unclear as to why this was the case, particularly as, to her knowledge, the respondent had not contacted the Irish employer at any stage. Without responding to the applicant's correspondence, the respondent issued the August decision upholding the five-year exclusion period. In the circumstances, and having regard to the correspondence, this amounted to a clear breach of fair procedures.
15. The applicant submits that the respondent failed to adequately investigate or substantiate the allegations of fraud made against her. It is submitted that the first respondent has a duty to be proportionate in their decision. No explanation has been provided as to why the maximum ban, as distinct from any lesser period, was imposed. In addition, the impugned decision is legally unreasonable and irrational.
16. Finally, in her amended statement of grounds, the applicant seeks an order quashing the decision of the second respondent revoking her work permit. The applicant pleads that, by email dated December 2022, the second respondent revoked the applicant's work permit on the stated basis that she was not in the employment specified on the permit. The applicant submits that if the court grants certiorari of the first respondent's August decision, then the decision of the second respondent should also fall.
Submissions of the first respondent
17. The first respondent raises a preliminary objection and submits that the applicant is wrongly attempting to mount a collateral attack on the first respondent's June decision. This is particularly apparent from the amended statement of grounds which sets out that the applicant is challenging both the affirmation of the refusal to grant the visa application within the June letter, as well as the five-year exclusion period set out within the August decision.
18. The applicant is significantly out of time to challenge the substantive visa refusal. Further, it was explicit from the letter of the 24th June 2022 that no appeal would follow from the substantive refusal. Had the applicant wished to challenge the June decision, judicial review should have followed shortly after that point. In these circumstances, any grounds of challenge relating to the substantive visa decision should not be considered by the court. Leave was granted solely in respect of the August decision to impose the exclusion period.
19. Turning to the applicant's main argument concerning fair procedures, the first respondent submits that the Visa Officer conducted checks, and as a result, harboured concerns in relation to the employment details which had been provided. The Visa Officer contacted both the applicant and her Chinese employer and compared the responses received. The June decision was explicit in stating that the applicant appeared to have provided false and misleading information, which the respondent says clearly related to her employment details. This ought to have put the applicant on sufficient notice of the issues at hand. The respondent was not obliged to substantiate or seek out further information, nor was the Minister obliged to put the applicant on notice of further details, or further particularise the flagged decision.
20. Insofar as the applicant complains that the allegation that the company website and headed paper of the proposed Irish employer were fraudulent and/or misleading should not be imputed to her, it is well established that an applicant is responsible for the veracity and truthfulness of every aspect of the documents they submit. Moreover, the applicant signed a document to confirm that she was aware that the submission of false documentation or information may result in a refusal and an exclusion period of up to five years. There is no burden on the first respondent to prove knowledge on the part of an applicant that the documents submitted were false or misleading.
21. There is no onus on a Visa Officer to contact the applicant's proposed employer or to carry out further investigative steps. Caselaw indicates that the onus remains at all times on an applicant to ensure that submitted documentation is correct and genuine.
22. The August letter makes clear that the Visa Officer was not satisfied as to the authenticity of Cloud Intersoft. Moreover, the Visa Officer had serious concerns surrounding the company's website, headed paper and other submitted documents which the August letter indicates do not contain the basic elements expected to be included in such media. In the circumstances, there was appropriate engagement with the documentation provided by the applicant and clear reasons given for the first respondent's final decision.
23. On a fair reading of the June and August decisions, it is clear that they go well beyond the respondent providing generic or codified reasons. The reasons advanced are clear and specific.
24. Turning to the appropriate test to apply, the respondent submits that the test of "arbitrary, capricious or unjust" applies, and furthermore that in conducting a review of an administrative decision of this nature, a significant level of deference should be afforded to the decision maker. Reliance is placed upon the decision of Burns J. in Muhammad Luqman v. Minister for Justice and Equality [2021] IEHC 496.
25. Case law makes clear that the onus is on an applicant to satisfy the Visa Officer that a visa should be granted for the purpose sought. It is submitted that, were it otherwise, the system would quickly break down. The case law also emphasises the wide discretion vested in a decision-maker in this context. Furthermore, no rights of the applicant are engaged in the process.
26. The applicant's fair procedures argument should be viewed against the backdrop that the applicant was interviewed twice by telephone on the 8th June 2022. On those occasions, the applicant was given an opportunity to clarify issues in respect of her employment contract, her salary and other aspects of her application. A telephone interview was also held with the applicant's current employer in China, and it was through this interview that the alleged inconsistencies arose. In these circumstances, it cannot be said that the applicant did not have an opportunity to deal with the issues raised. Moreover, the applicant was given a further opportunity after the June decision to make submissions in respect of the proposed five-year exclusion period. It is therefore clear that the applicant was given several opportunities to deal with the issues regarding her application but failed to do so. The respondent asserts that the issues raised in the August letter were not new assertions, each having been dealt with previously in the June decision. There can be no doubt as to why the visa application was refused and a five-year ban imposed.
27. The respondent relies upon the decision of Ferriter J. in Kiongera and Sheehy v. Minister for Justice and Equality [2021] IEHC 755. In that case, the court found that the provision of false information was a major and systemic issue, and there was no duty on the Minister to justify why a lesser period on the scale of up to five years was not chosen.
28. Turning to the relief sought as against the second respondent, it is submitted that the decision of the second respondent is an entirely separate consideration. The decision to revoke the applicant's work permit, while based on information relating to the revocation of the applicant's visa, was concluded on the basis that the applicant was not in the employment for which the permit was granted. The applicant was given an opportunity to appeal that decision but did not do so. The considerations in an application for a work permit and a work visa are separate and distinct.
29. No legal basis has been established to justify quashing the decision of either respondent. It is clear from the correspondence that the first respondent carried out a reasonable, rational and lawful assessment of the applicant's visa application and subsequent imposition of a five-year exclusion period. The applicant was given adequate opportunity to deal with all issues raised. Clear and cogent reasons for the refusal and imposition of the exclusion period were provided. The applicant is, in effect, seeking to appeal the first respondent's decision on the merits of the case, which is not appropriate in judicial review.
Analysis of the respondent's preliminary objection
30. While the primary focus in this case is the August decision upholding the five-year exclusion period, the applicant has also challenged in submissions the substantive refusal of the visa application communicated in the June letter. Having examined the applicant's amended statement of grounds, it is clear that the only relief sought is an order of certiorari to quash the decision of the 11th August 2022, and the decision of the second respondent dated the 2nd December 2022. No relief is sought with respect to the June decision, and the applicant has not been granted leave to challenge that decision. I agree with the respondent's objection in that regard. Therefore, it seems to me that the only decision properly under challenge in these proceedings is the August decision upholding the five-year exclusion period.
Phone interviews of the 8th June 2022
31. The respondent's statement of opposition is grounded on an affidavit of Melissa Brennan, a Higher Executive Officer in the Visa Division of the Irish Immigration Service Delivery in the Department of Justice and Equality. Ms. Brennan deposes that the applicant received two phone calls on the 8th June 2022 from the Department's office in Beijing in relation to her employment. She says that the office called the applicant's current Chinese employer on the same date. Ms. Brennan exhibits a contemporaneous note of the phone calls in question and various actions taken on the file. I have carefully reviewed this document. For reasons of brevity, I won't read it into the record. However, I can make a number of observations. Firstly, the phone interviews occurred on the 8th June approximately two weeks before the first refusal letter of the 24th June 2022. Secondly, it seems to me that some of the applicant's responses recorded in the notes undoubtedly present prima facie concerns that could potentially justify refusing her application for a work visa. Moreover, the Visa Officer appears to have formed the view that the applicant's responses during the phone interviews were vague in certain respects and, in one respect, inconsistent with what was said by her current Chinese employer.
32. Thirdly, the finding in the August letter that there were inconsistencies in relation to salary payments is not specifically referenced in the June letter, even though the June letter post-dated the telephone interviews. The June letter does refer to "inconsistencies in the information presented by both the applicant and the employer" but does not relate these inconsistencies to salary payments or otherwise.
33. Fourthly, it seems to me from the run of the correspondence that the applicant was under the impression that the inconsistencies referenced in the June letter arose from a conversation with her prospective Irish employer, not with her current Chinese employer. I will come back to the significance of this issue presently.
Legal principles governing a challenge to a visa application
34. Before turning to an analysis of the grounds for imposing the five-year ban as set out in the August letter, I should firstly make some general remarks about the nature of the Minister's powers and the legal threshold which the applicant has to meet.
35. In R.M.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 279, Clarke J. made it clear that the Minister is under no legal obligation to grant a visa, and that the grant or refusal of a visa is entirely a matter of the Minister's discretion. It is for an applicant to convince the Minister that he or she should be granted a visa. Essentially, Government policy determines which foreign nationals require visas to visit, transit, or work in the State. This is an aspect of the inherent executive power of the State. It is also well established that the mere denial of a visa does not establish a breach of rights.
36. Case law makes clear that the onus of proof is on an applicant when making a visa application. Generally, the applicant must put their best foot forward and it is not the job of the respondent to chase up supporting documentation. Burns J. stated in Luqman that there is an onus on an applicant for a visa of this nature to make his application with all of the supporting documentation. There is no onus on the respondent to advise an applicant on their application with respect to deficient information or material. Faherty J. made similar observations in K.N. & Others v. Minister for Justice and Equality [2017] IEHC 527 at para. 55.
Analysis of the applicant's fair procedures argument
37. The main points pressed by the applicant under the fair procedures heading are, firstly, that she has no way of knowing the basis of the respondent's concerns surrounding Cloud Intersoft's website and headed paper. Secondly, in the circumstances of the case, fair procedures required that the applicant should have been alerted to these concerns and given an opportunity to address them. Thirdly, from the run of the correspondence, it should have been clear to the respondent that the applicant mistakenly believed that the respondent's references in the June letter to "inconsistencies in the information presented by both the applicant and the employer" referred to her prospective Irish employer, whom the applicant insisted had not been contacted. Since this was the entire thrust of the solicitor's letters of the 5th and 6th July 2022, the respondent was under a duty to disabuse the applicant of her mistaken understanding and put her on the right road before issuing the final decision.
38. Case law makes clear that, as a matter of general principle, there is no obligation per se on the respondent to give advance warning to an applicant about perceived deficiencies or contradictions in the documents submitted with a visa application. This is clear from the decision of the Court of Appeal (Faherty J.) in A.A., W.M. and M.A. v. Minister for Justice [2024] IECA 57 at para. 79.
39. However, A.A. demonstrates that, depending on the individual features of a case, a combination of circumstances may give rise to an obligation on the respondent to alert a visa applicant, at least in a general sense, to concerns which it has formed about submitted documentation. In that case, the Court of Appeal quashed a refusal to grant a working visa to an Egyptian national who had been offered employment in Ireland. Reversing the decision of the High Court, Faherty J. found that in the particular circumstances of the case, the failure of the respondent, prior to issuing the refusal decision, to highlight (when effectively invited by the appellant to do so) the deficiencies in the applicant's qualification and work experience in relation to his prospective employment, deprived the appellant of any real or effective opportunity to address those perceived inadequacies. The Court of Appeal therefore ruled that, on grounds of procedural unfairness, the decision should be quashed and remitted for further consideration.
40. It should be said that the facts of A.A. are by no means identical to the facts of the present case. However, there are certain parallels. The circumstances in A.A. which gave rise to a duty to alert the visa applicant to the existence of a perceived difficulty are as follows. The applicant had no idea from the first instance decision, due to its brevity and opaqueness, what the exact problems with his documentation were (see para. 82). Moreover, in the undoubted knowledge that the appellant had focused only on his accommodation and travel arrangements (which he believed might be the source of the respondent's concerns), the respondent made no attempt to disabuse the appellant of this erroneous belief. Faherty J. found that, on a fair reading of the correspondence, the respondent was under a particular duty to "to put the appellant on the right road".
41. An important matter of context, that in my view has a particular bearing on the fair procedures issue in the present case, is the fact that we are not dealing here with a visa refusal simpliciter. Rather, the August decision of the respondent goes much further and effectively bans the applicant from making any further visa applications for a period of five years. An order of this nature has implications for a person's reputation and may have long term administrative implications affecting a person's visa status into the future. In my view, the impugned findings connote imputations of fraud or the usage of misleading documentation.
42. One of the stated grounds for imposing the five-year exclusion period as set out in the August letter was the "serious concerns" held by the Visa Officer "surrounding the company's website and headed paper and other submitted documents, which do not contain basic elements which would be expected to be included in such media". These specific concerns did not feature either in the initial June refusal letter, or in the notes of the telephone interviews of the 8th June 2022. It would appear that the first time these concerns were raised was in the final decision communicated in the August letter.
43. In my view, in the particular circumstances of this case, the inclusion of this nominated ground for imposing the five-year ban is problematic on a number of fronts. Firstly, as the letter confirms, the conclusion as to the submission of false or misleading documentation relating to Cloud Intersoft was arrived at without any steps having been taken to contact the applicant's proposed employer in Ireland. Secondly, this conclusion was arrived at without the applicant being alerted to the existence of concerns that the company website, headed paper or other documents did not contain "basic elements which would be expected to be included in such media".
44. Thirdly, and in my view critically, the respondent was asked by the court to identify which basic elements of the website and headed paper were said to be missing or questionable. Counsel for the respondent, notwithstanding her clear and comprehensive submissions, was unable to assist the court on this issue and unfortunately no explanation as to the particular concerns or deficiencies evident in the documents was forthcoming.
45. Fourthly, while it is correct that a level of deference should be accorded to a Visa Officer's judgment on such matters, the unusual circumstances of the present case, taken together, mean that the court is not in a position to carry out its supervisory function of assessing whether the decision to impose the exclusion period was unjust or unlawful. The court does not know on what basis it is suggested that the company website, headed paper or other documents were said to be bogus, deficient or otherwise questionable.
46. Fifthly, there does not appear to have been any clearcut finding that bogus or fraudulent documentation was in fact used. This is not a situation such as arose in Kiongera and Sheehy v. Minister for Justice [2021] IEHC 755 where Ferriter J. rejected a challenge to a five-year exclusion period imposed in the context of a Kenyan national seeking visa pre-clearance. In that case, the decision under challenge recorded on its face that the applicant had provided documentation which was deemed to be false. The decision recorded that the applicant had falsely answered "no" to a question on the application form asking whether there were any other names by which he was known. The refusal letter pointed out that the applicant had applied for an Irish visa on an earlier occasion under a different name. Moreover, the date of birth given on the application and in the accompanying passport was different to the date of birth given in the earlier application. Importantly, the applicant acknowledged that he had provided false information and documentation as part of his application. Against that unpromising backdrop, Mr. Kiongera claimed that the respondent had failed to have sufficient regard to the circumstances of mitigation surrounding the genesis of the false documentation.
47. Ferriter J. held that, arising from the facts of the case which were admitted by the applicant, it could not be said that it was impossible for the applicant to challenge the legality of the decision because he did not know what the basis of the decision was. The appeals officer had identified multiple separate instances of false information being used by the applicant and expressly determined that the applicant had knowingly applied for an Irish visa and travelled to Ireland using a fraudulent document (see para. 58). Based upon these established facts, the court found that the decision of Peart J. in Balc v. Minister for Justice [2018] IECA 76 was clearly distinguishable. Moreover, Ferriter J. was not persuaded that the law surrounding the duty to give reasons required the Minister, in the context of an ex gratia non-statutory scheme relating to persons who enjoy no Irish, EU or Convention rights per se, to expressly spell out in an appeal decision why a lesser period of preclusion was considered inappropriate on the facts of the case. In those circumstances, Mr. Kiongera's challenge was rejected.
48. In contrast, no such clear-cut findings of fraud or usage of bogus documentation have been made or admitted here. The telephone interviews were adjudged by the Visa Officer to give rise to concerns and inconsistencies between what was stated by the Chinese employer and what the applicant said during the call. However, the August decision indicates that the decision to impose the five-year ban was based on additional grounds including the (unidentified) discrepancies in the company website, headed paper and supporting documents.
49. In the applicant's grounding affidavit, she avers that she is unclear as to how the first respondent concluded that her proposed employment in the State was inauthentic. She says that after receiving the August letter, she contacted Mr. Dasari of Cloud Intersoft who confirmed that his company was not contacted for verification by the first respondent. Moreover, the applicant avers that insofar as it is alleged in the August letter that there were concerns in respect of Cloud Intersoft's website and headed paper, she says that the Irish Embassy did not provide to her the details of its concerns, nor did it contact the company in this regard. She repeats that she did not provide any false documents or information and says that the five-year ban on making any further visa applications is unfair and unjustified in the circumstances and will have a huge impact on her life and career.
50. In these circumstances, I find that the letter from Cloud Intersoft, signed by Mr. Dasari, assumes particular importance because it is seemingly that letter and headed paper that - partly anyway - gave rise to suspicions of fraud, as referenced in the impugned August decision.
51. The Cloud Intersoft letter dated the 29th June 2022 was included as an attachment to the letter from the applicant's solicitor responding to the June decision. At the foot of the letter, several contact details are provided including a mobile phone number, an email address, a website address and a postal address. The letter is signed on its face by Srinivasa Dasari, Office Admin (Human Resource Department).
52. It need hardly be said that the court possesses no expertise or specialised knowledge enabling it to assess whether letterheads, stationery or websites are genuine or not. What is beyond doubt, however, is that one of the stated grounds for imposing the five-year exclusion period was the Visa Officer's serious concerns surrounding this headed paper, website and other submitted documents. As I have already said, these serious concerns did not feature in the initial June refusal letter or in the notes of the telephone interviews of the 8th June.
53. In my view, to base a finding of fraud or the use of bogus documentation on concerns that the respondent is unable to explain, identify or elaborate upon, coupled with the failure on the facts of the present case to alert the affected party to the existence of such concerns so they might be addressed, renders the process that resulted in the exclusion period procedurally flawed.
Consideration of the severance issue
54. That is not the end of the matter, however, because it seems to me that I should keep at the forefront of my mind the fact that the August letter identifies other grounds for the five-year ban, beyond the suggested difficulties with the company website, headed paper and other documents. In Mukovska v. Minister for Justice and the Minister for Foreign Affairs [2021] IECA 340, the Court of Appeal (Hunt J.) rejected the appellant's argument that the infirmity of one reason necessarily results in the entire decision being condemned. There may be cases where a decision is based on valid and properly expressed reasons which would allow a decision to stand, notwithstanding defects in some other aspect of the decision-making procedure (see para. 44).
55. In Olakunori v. Minister for Justice, Equality and Law Reform [2016] IEHC 473, Humphreys J. provided a helpful summary of the principles to be applied in judicial review proceedings challenging a visa decision. For reasons of brevity, I will mention the following principles which seem to be material in the context of the case I have to decide:
"64.
(i) section 5 of the Illegal Immigrants (Trafficking) Act 2000 does not apply to a visa refusal;
...
(vii) in immigration matters, which are classically at the core of the executive power of a State, there must be a wide discretion vested in the decision-maker in the absence of clear statutory provisions to the contrary;
(viii) the integrity of the immigration system is promoted by consistency in decision-making, and the Minister may lawfully take this into account in deciding on a visa;
...
(x) if in a particular decision the correct test is not articulated in a precisely legally correct manner, that is not fatal as long as the correct test is applied in substance;
(xi) the weight to be attached to various factors is quintessentially a matter for the decision-maker;
...
(xiii) where a decision is based on a number of independent grounds each capable of supporting the result, the decision will not be quashed if any one or more grounds stand unaffected by any error in any impugned grounds".
56. In S.M. and T.A. v. Minister for Justice [2022] IEHC 611, Phelan J. found at para. 43 that there was a want of notice in the respondent's decision-making process insofar as matters of financial concern arose. That notwithstanding, Phelan J. declined to quash the overall decision as the financial findings which were made, while absent due process, did not affect the integrity of the decision as a whole, given the nature of the other grounds identified, which the court concluded were sufficiently weighty and unassailable (see para. 82). Significantly, the court found that the evidential gaps identified during the decision-making process were such that it was almost inevitable that the decision to refuse would have been made, even if no concerns arose in relation to finances and full regard was had to the explanation given. Moreover, Phelan J. found relevant the fact that the applicant could re-submit their application with up to date supporting documentation.
57. It seems to me that a very different situation arises in the present case. We are dealing here not merely with a decision to refuse a visa application, but with a more potent and far-reaching decision to impose a ban on making visa applications into the future and, more impactfully again, to impose the maximum exclusion period of five years. The impugned decision is much more than a finding that the applicant's application papers did not pass muster; it amounts to a finding that she knowingly submitted false or misleading documentation, including documentation from an inauthentic employer.
58. Secondly, in absence of the August letter attaching specific weight to each of the nominated grounds, it is difficult for the court to assess precisely what part the infirm ground played in the overall decision. It seems to me that consideration of this issue engages a further aspect of the applicant's case under the fair procedures heading. The applicant complains that the August letter does not refer to the specific criteria for imposing an exclusion period or for assessing the duration of same. While the letter does say that the applicant signed a document confirming that she understood that the submission of false or misleading documents/information may result in such an exclusion period being made, it does not set out the criteria for imposing a ban or calculating its duration. Nor does the letter explain why the full extent of the five-year period was imposed, as distinct from any lesser period. In my view it is unsatisfactory that the court has not been provided with even basic information as to the criteria for imposing an exclusion period, or for determining its duration. It might be thought, for instance, that lesser infractions might warrant a lesser period being imposed, however we simply do not know because the relevant criteria have not been identified.
59. In any event, what is clear from the correspondence is that, based upon the grounds identified in the August letter, including the unidentified concerns surrounding the company's website, headed paper and other submitted documents, a decision was made to ban the applicant from making future visa applications, and the maximum five-year exclusion period was imposed. Since the character of the impugned order is more potent and far-reaching than a mere refusal of the visa, and its implications more enduring and serious, it is impossible to avoid the conclusion that the infirm ground may have affected the final outcome. Certainly, there is a strong possibility that the infirm ground may have been material not only to the decision in principle to impose a ban, but also to the decision as to the ban's duration.
60. In my view, there are several unusual features of the present case which, taken together, render the respondent's decision-making process sufficiently flawed and unfair as to warrant setting aside the exclusion period. I am not saying that each feature, in and of itself, warrants criticism or amounts to a breach of fair procedures or would be sufficient to invalidate the August decision. However, taken together, the combination of these features warrants the intervention of the court. These cumulative features may be summarised as follows:
(i) The finding that the applicant submitted false or misleading documentation or information is essentially based on two grounds: (1) the Visa Officer holds concerns in relation to the applicant's current employment in China, around which inconsistencies were noted in relation to salary payments; and (2) the Visa Officer holds concerns in relation to the authenticity of the proposed Irish employer in that, following checks, issues were identified in relation to the company's website, headed paper and other submitted documents. The respondent was unable to explain, identify or elaborate upon the concerns in question during the hearing.
(ii) As well as not having contacted Cloud Intersoft, the respondent has not identified what checks were carried out regarding the authenticity of the headed paper, company website, or other documents.
(iii) In the view of the court, ground (2) of the impugned decision is procedurally flawed and legally infirm.
(iv) The infirm ground was material to the impugned decision in that it may have affected the decision to impose a ban, the duration of the ban, or both.
(v) The respondent has been unable to assist the court by providing an outline of the criteria for imposing a ban or for measuring the length of a ban.
(vi) The specific allegation the subject of ground (1) above - namely that inconsistencies were noted in relation to salary payments by the applicant's current Chinese employer - did not feature in the earlier June letter or in the notes of the telephone interview from the 8th June, and appeared for the first time in the impugned August decision. Therefore, the applicant was not on notice of this specific allegation prior to the final decision being made.
(vii) From the run of the correspondence, the respondent should have been aware that the applicant believed that the reference to "inconsistencies in the information presented by both the applicant and the employer" was a reference to Cloud Intersoft Limited, and not to her current employer in China. The respondent should also have been aware that it was the applicant's position that, arising from the June letter, this allegation was mistaken or misconceived, because the Visa Officer had not, in fact, been in contact with Cloud Intersoft. The applicant was not put right about this at any stage prior to the final decision being made.
(viii) Were it necessary to determine the point, I would conclude that ground (1) of the impugned decision is also procedurally flawed and legally infirm.
(ix) Contrary to the respondent's position, the August decision contains new findings and allegations that did not appear in the June decision.
(x) The option of the applicant re-submitting her application to address the alleged discrepancies surrounding the authenticity of Cloud Intersoft's website, headed paper and other documents is not reasonably available to the applicant because the discrepancies in question have not been explained, identified or elaborated upon.
(xi) All of this occurred in a context where the implications of a visa ban and exclusion period are more far-reaching and potentially more injurious to a person's reputation than a mere refusal of a visa application.
Conclusion
61. For the reasons stated, the applicant is entitled to an order of certiorari quashing the first respondent's decision of the 11th August 2022 affirming the decision to impose a five-year exclusion period.
62. I am not satisfied that any basis has been established for quashing the decision of the second respondent to revoke the applicant's work permit. Since the initial decision to refuse the visa application itself remains extant, the basis claimed by the applicant for quashing the work permit revocation has not been established. Moreover, since it has not been properly challenged in these proceedings, the initial decision to refuse the work visa still stands.
63. I will hear the parties on the questions of whether remittal is necessary, and on final orders and costs.
Signed:
Micheál O'Higgins
Appearances:
For the applicant: Femi Daniyan BL instructed by Hiro Ino & Co. Solicitors.
For the respondent: Laura Cunningham BL instructed by the Chief State Solicitor's Office.