Media, Entertainment and Arts Alliance

[2022] FWC 144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Media, Entertainment and Arts Alliance

(RE2021/1282)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Nikau Isfree Irvine – permit previously issued - permit never received – order revoking missing permit – permit reissued.

The Media, Entertainment and Arts Alliance (MEAA) applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Ms Nikau Isfree Irvine. The Commission subsequently issued Ms Irvine a right of entry permit which will expire on 15 December 2024.

Ms Irvine’s permit is one of the 37 missing entry permits referred to in decision [2022] FWC 123. As indicated in that decision, in order for Ms Irvine to hold a valid entry permit, the missing permit must be revoked and a permit must be reissued. In order to issue a permit to Ms Irvine, I need to be satisfied that she is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The relevant statutory considerations set out in [2022] FWC 123 are adopted here and need not be repeated.

Consideration

In support of its application MEAA filed declarations by Ms Irvine and Mr Simon Collins, Federal President (the Declarations).

Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)

According to the Declarations:

· Ms Irvine has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 22 October 2021 (s.513(1)(a) of the Act));[1]

· Ms Irvine has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[2]

· Ms Irvine has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;[3]

· Neither Ms Irvine nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by her (s.513(1)(d) of the Act);[4]

· Ms Irvine has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);[5]

· Ms Irvine has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Irvine held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act);[6] and

· Ms Irvine has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).[7]

I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Ms Irvine is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(g)

There are no other matters of which I am aware that I consider relevant to the determination of whether Ms Irvine is a fit and proper person to hold an entry permit.

Conclusion

Pursuant to s.603 of the Act, the entry permit formerly issued to Ms Irvine by decision of the delegate is revoked with effect from the date of this decision. A revocation order is separately issued in PR737825.

Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Ms Irvine is a fit and proper person to hold an entry permit.

A permit will be reissued to Ms Irvine separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 12 November 2021 at (a) and correspondence of successful completion from Mr Koulouris dated 25 October 2021

[2] Ibid at (b)

[3] Ibid at (c)

[4] Ibid at (d)

[5] Ibid at (e)

[6] Ibid at (f)

[7] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case, the respondent, a citizen of Kiribati, had previously been granted a right of entry permit by the Minister for Immigration and Border Protection. However, the permit was never delivered to him, and the respondent subsequently made an application for a new permit. The respondent's application was refused, and he sought judicial review of that decision in the Federal Circuit Court. The primary issue before the court was whether the original permit, which had been revoked by order of the court, could be considered as having been issued for the purposes of the Migration Act.

The court found that the original permit, although revoked by order of the court, could be considered as having been issued for the purposes of the Migration Act. The court held that the revocation order did not negate the fact that the permit had been issued, and therefore, the respondent's application for a new permit was properly refused. The court found that the respondent had not satisfied the requirements for a new permit, as he had not demonstrated that he had lost or destroyed his original permit.

The court further held that the respondent's application for a new permit was not in accordance with the Migration Regulations, as he had not provided sufficient evidence to support his claim that he had lost or destroyed his original permit. The court found that the respondent had not demonstrated that he had taken reasonable steps to locate his original permit, and therefore, his application was properly refused. The court also found that the respondent had not provided sufficient evidence to support his claim that he was entitled to a new permit on humanitarian grounds.

The court ordered that the application for a right of entry permit be dismissed. The court found that the respondent had not satisfied the requirements for a new permit, and that his application was properly refused. The court also found that the respondent had not demonstrated that he was entitled to a new permit on humanitarian grounds. The court did not make any orders regarding the reissuance of the original permit.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established