Minister erred in concluding that she had no discretion to grant employment permit

Judicial review - limited company which operates a restaurant challenging the decision of the Minister for Business, Enterprise and Innovation refusing to renew their head chef’s employment permit – Malaysian national entered the State as a student – employed as a chef - promoted to head chef and t applied for and was granted an employment permit for one year - permit expired – further information - remuneration was €600.00 per week – applied for renewal – refused - in the State without current immigration permission from the Minister for Justice, Equality & Law Reform – permission to remain lapsed - documentation submitted with the renewal application showed that the chef had received less than the annual remuneration stated on the previous employment permit and fell below the minimum required by Employment Permits Act, 2006 – internal review of the decision – appeal refused – argued that the Minister misapplied the relevant provisions of the Employment Permits Act, 2006 – argued that the Minister unlawfully fettered her discretion - Minister has a discretion to grant or refuse an employment permit even in the presence of the circumstances identified in the Act - permissive rather than mandatory language adopted by the Oireachtas places a duty upon the Minister to act fairly and judicially in exercising the power conferred by the statute - Minister has a duty to consider the individual facts of each case as they arise - Minister abdicated her responsibility to exercise the discretion 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” - legally erroneous - undertook to the court that remuneration would be rectified - obligation to engage with and consider the explanation offered by the applicant for non-compliance with the terms of the previous permit – failed to engage with the explanations offered – insufficient reasons - Minister not entitled to adopt a fixed and inflexible policy which effectively does not admit of the exercise of any discretion or have regard to the circumstances of the individual case under consideration – judicial review granted.