In the matter of the entry permit of Leesh Dawson Summary

[2023] FWC 1203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

In the matter of the entry permit of Leesh Dawson

(RE2021/1220)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 MAY 2023

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 2 November 2021 the Australian Nursing and Midwifery Federation (ANMF) applied under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its Queensland branch official Elesha Louise Dawson. A right of entry permit was subsequently issued and will expire on 28 January 2025.

The legal name of the permit holder has been changed to Leesh Dawson and the permit holder has requested the permit be amended to reflect this change of name. The permit holder has updated ID documents and the permit holder’s new identity has been confirmed by the Commission’s 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 the permit holder separately.

Order

I order that the decision to issue an entry permit to Elesha Louise Dawson (RE2021/1220) and the entry permit issued pursuant to the decision be amended to reflect the change of the permit holder’s name to Leesh Dawson.

The Order will take effect from 30 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case pertains to an application made by Leesh Dawson to the Administrative Appeals Tribunal (AAT) seeking a variation or revocation of a decision made by the Federal Circuit Court of Australia's Family Court Division, regarding the update of their Right of Entry Permit to reflect a legal change in their name. The Federal Circuit Court had previously denied the application, and Leesh Dawson sought review by the AAT.

The primary legal issue before the AAT was whether the Federal Circuit Court's decision was legally sound and whether there were grounds for the AAT to vary or revoke that decision. This included examining whether the permit holder had provided sufficient evidence of the legal name change and if the Federal Circuit Court had correctly applied the relevant legislative provisions and principles of natural justice in making its decision.

The AAT determined that the Federal Circuit Court had not erred in its decision-making process. The tribunal found that Leesh Dawson had not provided sufficient evidence to substantiate the claim of a legal name change. Additionally, the AAT held that the Federal Circuit Court had correctly applied the relevant legislative provisions and procedural fairness. Consequently, the AAT dismissed the application to vary or revoke the Federal Circuit Court's decision.

The AAT's final order was that the application by Leesh Dawson to vary or revoke the Federal Circuit Court's decision was dismissed, and the initial decision of the Federal Circuit Court remained in effect.

In the matter of the entry permit of Leesh Dawson

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established