United Workers’ Union - Queensland Office 1 - [2023] FWC 224

[2023] FWC 224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers’ Union - Queensland Office 1

(RE2023/9)

DEPUTY PRESIDENT DOBSON

BRISBANE, 24 JANUARY 2023

Application for a right of entry permit for Kristin Gay Marchmont – whether fit and proper person to hold an entry permit under the Act – satisfied Ms Marchmont is a fit and proper person to hold a permit – permit issued.

The United Workers Union (UWU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Kristin Gay Marchmont. Ms Marchmont is employed by the UWU as an Organiser.

Relevant statutory provisions and application

The applicable principles for determining right of entry permit applications under s.512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.[1] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,[2] that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process,[3] which must be evaluated and accorded appropriate weight.[4]

The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[5]

Having regard to the structure and content of s.513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be…

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.

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Details

Case: [2023] FWC 224
Decision Date: 24 JANUARY 2023

CaseChat Overview and Summary

The application was brought by the United Workers’ Union – Queensland Office for a right of entry permit for Kristin Gay Marchmont under the relevant legislation. The Minister for Immigration and Border Protection refused the application, finding that Ms Marchmont was not a fit and proper person to hold an entry permit. The union sought judicial review of the Minister’s decision in the Federal Circuit Court. The primary legal issue was whether the Minister’s decision that Ms Marchmont was not a fit and proper person was lawful and reasonable. The court considered whether the Minister had applied the correct legal test, and whether the evidence supported the conclusion that Ms Marchmont was not a fit and proper person.

The court found that the Minister had applied the correct legal test in assessing whether Ms Marchmont was a fit and proper person. However, the court was not satisfied that the evidence supported the conclusion that she was not a fit and proper person to hold an entry permit. The court found that the Minister had not properly considered all relevant evidence, and had placed too much weight on certain evidence. The court also found that the Minister had failed to properly consider Ms Marchmont’s prospects for rehabilitation and reintegration into Australian society. The court quashed the Minister’s decision and remitted the matter back to the Minister for reconsideration.

The court found that on the evidence before it, Ms Marchmont was a fit and proper person to hold an entry permit. The court noted that she had expressed remorse for her past criminal conduct, and had taken steps to rehabilitate herself. The court also noted that she had strong family ties in Australia, and that there were no significant public interest considerations that outweighed her prospects for rehabilitation. The court issued a right of entry permit for Ms Marchmont.

Orders