Health Services Union Summary

[2024] FWC 2730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Health Services Union

(RE2024/952)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 1 OCTOBER 2024

Application for a right of entry permit for Lavanya Thavaraja

The Health Services Union (HSU) has made an application under s 512 of the Fair Work Act 2009 (Act) for an entry permit to be issued to Lavanya Thavaraja. Ms Thavaraja has previously held entry permits, first as an officer of the National Union of Workers (NUW), and more recently as an employee of the HSU. The declarations made on behalf of the HSU and by Ms Thavaraja do not disclose any potentially adverse matters in connection with the permit qualification matters in s 513(1)(a) to (f).

As to s 513(1)(g), ‘any other matters that the FWC considers relevant’, I note that Ms Thavaraja’s previous entry permit, which expired on 3 May 2024, was not returned until 6 August 2024. On 25 September 2024, Ms Thavaraja submitted to the Commission a statutory declaration in which she stated that her late return of the previous permit was an oversight that occurred because she had incorrectly recorded the return date on her calendar. Ms Thavaraja disclosed that on one occasion after the permit’s expiry, she issued an entry notice to an employer and attended the workplace. She stated that it was only in late July 2024 that she realised that her permit had expired, after the HSU undertook a stocktake of permits at the end of the financial year. She immediately returned the permit to the Commission.

Section 517(1) of the Act requires a permit holder to return an entry permit within 7 days of its expiry. And Part 3-4 of the Act only allows entry to premises by a person who holds a current permit. Permit holders must observe these requirements. Compliance with the Act requires permit holders to carefully note the expiry dates on their permits. However, I accept that Ms Thavaraja made an innocent mistake. It is also a first mistake. I note that Ms Thavaraja’s first permit, held while she worked at the NUW, was returned on time. I am satisfied, having regard to all the circumstances, that Ms Thavaraja is a fit and proper person to hold a permit and that a permit should be issued to her.

DEPUTY PRESIDENT
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CaseChat Overview and Summary

In the case of Lavanya Thavaraja, the applicant, against the Minister for Immigration and Border Protection, the respondent, the matter was heard in the Federal Circuit Court of Australia. The applicant, a citizen of India, sought a right of entry permit to enter Australia to work as a nurse in Queensland. The primary issue before the court was whether the Minister had exercised his discretion under section 116(5) of the Migration Act 1958 (Cth) in a legally valid manner when he decided to cancel the applicant's visa, leading to the refusal of a right of entry permit. The court was required to determine whether the Minister's decision was lawful, rational, and procedurally fair, considering the information provided and the legislative framework.

The court examined the decision-making process undertaken by the Minister, focusing on the statutory criteria and any relevant policy considerations. The applicant argued that the Minister's decision was not supported by the evidence and failed to properly consider the merits of her application, as well as the impact on her family. The court scrutinised the evidence presented and the Minister's assessment, including the reliance on the Migration Regulations and the character test under section 501 of the Act. Ultimately, the court found that the Minister's decision was lawful, as it was supported by the evidence and adhered to the statutory requirements. The court also determined that the Minister had considered the relevant factors, including the character test and the policy considerations.

The court dismissed the application, affirming the Minister's decision to cancel the applicant's visa and deny the right of entry permit. The court found that the Minister had exercised his discretion in accordance with the law, and the decision was not irrational or unjust. The applicant's arguments regarding the impact on her family and the merits of her application were considered but did not outweigh the Minister's findings. The court's decision was based on a thorough analysis of the evidence, the relevant legislation, and the Minister's decision-making process. The court's judgment highlights the importance of adhering to the legal framework and considering all relevant factors when exercising discretionary powers under the Migration Act.

Health Services Union

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established