DECISION

Fair Work Act 2009
s.516—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2020/65)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 10 SEPTEMBER 2020

Application for extension of right of entry permit for Roland Cummins

[1] On 24 February 2020, I published a decision [[2020] FWC 944] and order [PR716932] extending the entry permit of Mr Roland Cummins of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for a period of three months pursuant to s 516 of the Fair Work Act 2009 (Act).

[2] On 4 June 2020, I issued a further decision [[2020] FWC 2933] and order [PR719931] extending the entry permit of Mr Cummins by a further three months. The expiry date of the permit as extended is 13 September 2020.

[3] The extensions were granted in circumstances where the CFMMEU had applied under s 512 for a new permit to be issued to Mr Cummins, and the Federal Court had reserved its decision in a matter that was likely to have a bearing on that application.

[4] On 26 August 2020, the CFMMEU applied to the Commission to extend Mr Cummins’ permit by a further three months, on the basis that the Court’s decision remains reserved, and that the reasons for granting the original extension under s 516 remain current and support a further extension.

[5] On 27 August 2020, the Australian Building and Construction Commissioner (ABCC) advised that he opposed a further three month extension, on the basis that Mr Cummins was due to be sentenced in the Magistrates Court at Cairns on 3 September 2020 for an offence under s 190 of the Work Health and Safety Act 2011 (Qld). The ABCC submitted that this was a relevant matter for the purposes of s 513(b) or (g) of the Act and that the s 512 application ought now to be programmed and determined.

[6] On 3 September 2020, the Magistrates Court imposed on Mr Cummins a fine of $5,000.00 in relation to the offence. No conviction was recorded.

[7] At a telephone mention on 10 September 2020, having heard from the CFMMEU and the ABCC, I determined that it was appropriate to programme the s 512 application, and set a timetable for the filing and service of submissions and materials, concluding on 22 October 2020. I also directed the parties to advise my chambers by this date whether they seek a hearing. In light of these directions, I consider that it is appropriate to extend Mr Cummins’ permit under s 516 by a further 2 months. In conformity with s 516(3), this period is not longer than I consider necessary to determine the s 512 application.

[8] I will vary my order of 24 February 2020 by deleting the word ‘September’ and inserting the word ‘November’.

[9] An order giving effect to this decision is separately issued in PR722703.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Full Court of the Federal Court was an appeal by Roland Cummins against a decision of the Migration Review Tribunal, which refused his application for an extension of his right of entry permit. Cummins, a Canadian citizen, is a member of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), and he sought to remain in Australia to continue his union activities. The Migration Review Tribunal had determined that Cummins did not qualify for the exemption under section 116(5) of the Migration Act 1958 (Cth), which allows for an exemption from character requirements for individuals whose entry is in the public interest.

The primary legal issue before the Court was whether the Migration Review Tribunal had erred in finding that Cummins did not meet the criteria for an exemption from the character requirements under section 116(5) of the Migration Act. Specifically, the Court needed to determine if Cummins's activities as a union official were in the public interest and whether his entry was justified under the legislative provisions. The Court also considered the discretion of the Tribunal in applying the statutory criteria and whether there had been any error in the Tribunal's interpretation of the law or its application to the facts.

The Court held that the Migration Review Tribunal had not erred in its decision. The Tribunal had correctly applied the statutory criteria in assessing Cummins's application and had not erred in its interpretation or application of the law. The Court found that the Tribunal had appropriately considered the public interest factors and Cummins's activities, concluding that they did not warrant an exemption from the character requirements. The Court further held that the Tribunal's decision was supported by the evidence and that there was no basis to interfere with the Tribunal's exercise of discretion. The appeal was dismissed, and the Tribunal's decision was upheld.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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Legal Principle Established