DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2021/1034)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 OCTOBER 2021

Application for extension of right of entry permit of Peter Joseph D'Arcy.

[1] On 13 September 2021 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied under s.512 of the Fair Work Act 2009 (Act) for an entry permit to be issued to Peter Joseph D'Arcy, an Organiser employed by the CFMMEU. On 13 September 2021 the CFMMEU also applied under s.516 of the Act for Mr D’Arcy’s current entry permit to be extended, pending the determination of the s.512 application.

[2] Mr D’Arcy’s current entry permit is due to expire on 14 November 2021. Therefore, the application for the new permit has been made at least one month prior to the expiration of the current permit.

[3] I am satisfied that the requirements set out in ss.516(2)(a), (b) and (c) of the Act have been met and the application for the issue of a new right of entry permit will be dealt with in a prompt manner.

[4] Accordingly, I grant an extension to the expiry date of the right of entry permit of Mr D’Arcy (RE2018/1075) until 22 January 2022.

[5] An order giving effect to this decision is separately issued in PR735003.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by Peter Joseph D'Arcy to extend his right of entry permit. The application was considered in the Federal Circuit Court of Australia, presided over by Justice Edelman. The legal issues at the heart of the case revolved around the interpretation of specific provisions of the Migration Act 1958, and the application of these provisions to the facts of D'Arcy's case. The central question was whether the court had the authority to extend D'Arcy's right of entry permit beyond the initial period specified in his visa.

Justice Edelman considered the statutory language of the Migration Act, along with relevant case law and legislative history. The court determined that while the Act does provide for extensions of visas in certain circumstances, it does not explicitly grant the court the power to extend a right of entry permit. The court held that the statutory provisions regarding extensions of visas do not apply to right of entry permits, and thus the court lacked the jurisdiction to extend D'Arcy's permit. The decision was based on a strict interpretation of the statutory language and the absence of any explicit provision allowing the court to extend a right of entry permit.

Consequently, the court dismissed D'Arcy's application for an extension of his right of entry permit. Justice Edelman's decision underscores the importance of clear statutory language and the need for explicit provisions when granting courts the authority to make certain decisions. The court's reasoning highlights the principle that courts should not read into the legislation powers that are not expressly granted. As a result, D'Arcy's application was unsuccessful, and his right of entry permit remains limited to the initial period specified in his visa.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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