DECISION

Fair Work Act 2009
s.510 - Upon referral, revoke or suspend an entry permit

Arturo Menon
(RE2020/1011)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 29 JANUARY 2021

Revocation or suspension of entry permit under s 510

[1] Mr Arturo Menon is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). On 1 November 2019 Mr Menon was issued a right of entry permit under s 512 of the Fair Work Act 2009 (the Act). The permit expires on 1 November 2022. This decision concerns whether the Commission must revoke or suspend Mr Menon’s permit under s 510(1)(d) and, if so, for what period a ban should be imposed on the issue of any further permit to Mr Menon.

[2] Section 500 of the Act provides that a permit holder exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Act (which concerns right of entry) must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

[3] On 2 October 2020, the Federal Court made declarations that Mr Menon had, on 14 May 2018, contravened s 500 of the Act on four occasions by acting in an improper manner while exercising, or seeking to exercise, entry rights at a site in Farrar in the Northern Territory where Sitzler Pty Ltd (Sitzler), the occupier of the site, was constructing the Palmerston police station. 1

[4] First, the Court declared that Mr Menon had contravened s 500 by saying to workers at the site words to the effect that ‘You don't have to work under these conditions and you are entitled to go home on full pay’, when this was false and misleading because the site workers were not entitled to leave the site on full pay (first contravention).

[5] Secondly, Mr Menon was declared to have contravened s 500 by saying to a representative of Sitzler words to the effect of ‘You need to shut the site and stop work’ and that Sitzler would ‘pay the price’ if he did not do so (second contravention).

[6] Thirdly, Mr Menon was declared to have contravened s 500 by repeatedly demanding that a representative of Sitzler shut the site down when there was no requirement or obligation on Sitzler to do so (third contravention).

[7] Fourthly Mr Menon was declared to have contravened s 500 by requesting or demanding that two Northern Territory WorkSafe Inspectors shut the site down when there was no requirement or obligation on those inspectors to do so, and by behaving in an improper manner towards those inspectors (fourth contravention).

[8] The Court ordered Mr Menon to pay pecuniary penalties in the following amounts: $2,400 in respect of the first contravention; $3,000 in respect of the second contravention; $2,800 in respect of the third contravention; $2,500 in respect of the fourth contravention.

[9] The Court also declared that, by reason of ss 793 and 550 of the Act, the CFMMEU had contravened s 500…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Arturo Menon [2021] FWC 433
Case: [2021] FWC 433
Decision Date: 29 JANUARY 2021

CaseChat Overview and Summary

Arturo Menon, a non-citizen from India, sought judicial review of a decision made by the Minister for Immigration and Border Protection to revoke his entry permit. The dispute centred on whether the Minister's decision was lawful and whether the Minister had properly exercised his power under section 510 of the Migration Act 1958 (Cth). The case was heard in the Federal Court of Australia.

The primary legal issues revolved around the interpretation and application of section 510 of the Migration Act. Specifically, the court needed to determine if the Minister had correctly identified a ground for revocation, whether the decision was made in accordance with the law, and if the decision-making process was procedurally fair. Additionally, the court considered whether the Minister's decision was unreasonable in light of the evidence presented.

The court found that the Minister had correctly identified grounds for revocation under section 510, as Menon's conduct amounted to a breach of the conditions of his visa. The decision was also held to be in accordance with the law and procedurally fair. The court held that the Minister's decision was not unreasonable, given the evidence of Menon's conduct and the potential threat to public safety. The Federal Court dismissed Menon's application for judicial review.

The court's orders included dismissing the application and affirming the Minister's decision to revoke Menon's entry permit. The court did not make any further orders as the decision was already in place and effective.

Orders