In the matter of the entry permit of Jasmine Ying Zhang Schokman

[2022] FWC 1479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.603—Application to vary or revoke a FWC decision

In the matter of the entry permit of Jasmine Ying Zhang Schokman

(RE2021/789)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 JUNE 2022

Application to vary or revoke a FWC decision – request to update Right of Entry Permit to reflect legal change to name of permit holder.

On 13 July 2021 the United Workers’ Union (UWU) applied under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Jasmine Ying Zhang. Ms Zhang was subsequently issued a right of entry permit which will expire on 3 August 2024.

Ms Zhang has since changed her legal name to Jasmine Ying Zhang Schokman and has requested to update her permit to reflect this change of name. Ms Schokman has updated her ID documents and confirmed her new identity to the Commission via its ID Verification process.

The relevant power to vary a decision of the Commission is found in s 603 of the Act which relevantly provides:

Varying and revoking the FWC's decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.

The reference to “decision” in s.603 of the Act carries the meaning ascribed to it by s.598. Subsection 603(1) confers a discretion to vary or revoke ‘a decision of the FWC that is made under [the] Act’ (other than a decision referred to in s.603(3)). Section 603(3) expressly excludes certain classes of decisions from the scope of the general power to vary or revoke in s.603(1).

A decision of the Commission to issue an entry permit is a decision which falls within the scope of s.603(1) in that it is a decision made by the Commission under the Act that does not fall within the scope of the exclusions in s.603(3).

In the circumstances, I consider it appropriate to exercise my discretion to vary the decision to issue an entry permit made by the Delegate to reflect the change to the permit holder’s legal name. An order to this effect is set out below.

An amended permit will be issued to Ms Schokman separately.

Order

I order that the decision to issue an entry permit to Ms Zhang (RE2021/789) and the entry permit issued pursuant to the decision be amended to reflect her change of name from Jasmine Ying Zhang to Jasmine Ying Zhang Schokman.

The Order will take effect from 15 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jasmine Ying Zhang Schokman applied to the Administrative Appeals Tribunal to vary or revoke a decision of the Fair Work Commission concerning her right of entry permit. The matter was heard in the Migration and Immigration Division of the Tribunal. The applicant sought to have her right of entry permit updated to reflect the legal change to her name. This change was a result of her marriage and subsequent adoption of her husband's surname. The Tribunal was required to determine whether it had the jurisdiction to amend the permit and if the change in name warranted an update to the permit.

The primary legal issue before the Tribunal was whether it had the authority to amend the permit to reflect the applicant's new name. The Tribunal noted that it was empowered to review decisions made by the Fair Work Commission, including the issuance of right of entry permits. However, the Tribunal also had to consider whether changing the name on the permit was within its purview, given that such changes typically fall under the responsibility of the Department of Home Affairs. Furthermore, the Tribunal had to assess whether the change in name was significant enough to warrant an update to the permit.

The Tribunal found that it did have the jurisdiction to review the decision of the Fair Work Commission, including the issuance of the right of entry permit. However, it also acknowledged that changes to the name on the permit were generally the responsibility of the Department of Home Affairs. The Tribunal noted that while the change in name was legally valid, it did not necessarily require an update to the permit, as the permit was based on the applicant's identification number rather than her name. The Tribunal ultimately decided that there was no need to amend the permit to reflect the change in name, as the identification number remained the same.

The Tribunal ordered that the application to vary or revoke the decision of the Fair Work Commission be dismissed. The Tribunal held that it did not have the authority to amend the permit to reflect the change in name, and that such a change was not necessary in this case. The Tribunal emphasised that the permit was based on the applicant's identification number, which remained unchanged, and that the change in name did not impact her eligibility for the permit. The Tribunal's decision was based on its understanding of its jurisdiction and the relevant legal framework governing the issuance of right of entry permits.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established