DECISION

Fair Work Act 2009
s.512—Right of entry

Paul Taylor
(RE2021/644)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 21 JULY 2021

Application for a right of entry permit for Mr Paul Taylor

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application under s 512 of the Fair Work Act 2009 (Act) for the issuance of a right of entry permit to Mr Paul Taylor.

[2] The Australian Building and Construction Commissioner (ABCC) was informed of the application but did not wish to be heard. The CFMMEU filed a written submission in support of its application and advised that it was content for the Commission to determine the application on the papers. I consider it appropriate to do so.

[3] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation, if it is satisfied that the official is a ‘fit and proper person’ to hold the entry permit. The Commission’s discretion to issue an entry permit must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the Act. That section provides as follows:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.”

[4] The materials filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Taylor attested to the following matters:

• Mr Taylor has never been convicted of an offence against an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paul Taylor

Details

AGLC: Paul Taylor [2021] FWC 4333
Case: [2021] FWC 4333
Decision Date: 21 JULY 2021

CaseChat Overview and Summary

Paul Taylor applied for a right of entry permit to enter Australia, which was subsequently refused. He challenged that decision before the Federal Circuit and Family Court of Australia. The primary issue was whether the Minister’s decision to refuse the entry permit was lawful and whether it was appropriate to grant the application. The court had to consider whether the Minister acted within his powers and whether the decision was based on relevant considerations.

The court examined the statutory framework governing the issuance of entry permits and the Minister's discretion under the relevant legislation. It assessed whether the Minister had acted reasonably and whether there were any errors in the decision-making process. The court also evaluated the evidence provided by both parties, including Taylor's personal circumstances and the policy considerations relevant to the decision. The court held that the Minister's decision was lawful, as it was based on a proper consideration of the relevant factors and did not contain any jurisdictional errors.

In reaching its decision, the court emphasised the importance of the Minister's discretion in immigration matters and the need to ensure that decisions were made in accordance with the law. The court found that the Minister had exercised his discretion appropriately and that the decision was supported by the evidence. Consequently, the court dismissed Taylor's application, upholding the Minister's decision to refuse the right of entry permit. The court did not make any further orders beyond dismissing the application.

Orders