Tredger (Migration)

[2021] AATA 2653

Tredger (Migration) [2021] AATA 2653 (15 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robert Clive Tredger

CASE NUMBER:  2012561

HOME AFFAIRS REFERENCE(S):          BCC2020/1983319

MEMBER:Wendy Banfield

DATE:15 May 2021

PLACE OF DECISION:  Canberra

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 651 eVisitor visa.

Statement made on 15 May 2021 at 5:09pm

CATCHWORDS
MIGRATION – Visitor (Class TV) visa – Subclass 651 (eVisitor) – risk to health of Australian community – COVID-19 border closure – solo sailor applied for travel exemption, which was refused – son did not inform him of refusal until he was close to Australia – self-isolated during voyage – discretion to cancel visa – has lived on boat for 8 years, with no permanent residence – engine problems, low food and water and physical and mental exhaustion – no attempt to deceive – currently in home country, with boat in Australia needing repairs – unprecedented and unique circumstances unlikely to result in others doing the same – previous compliant entries and stays – effect of 3-year exclusion on visiting son and grandson – effect of cancellation on visa applications for other countries – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(e)(i)

CASES
ATR15 v MIBP [2016] FCCA 1089
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 651 eVisitor visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety and good order of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. Robert Clive Tredger is a dual national of South Africa and the United Kingdom and is currently 67 years old. He was granted an eVisitor visa to travel to Australia on 10 September 2019 to visit his son and grandson. Mr Tredger is a solo sailor and at the time his visa was cancelled, had lived on his vessel for 8 years. He was in French Polynesia on route to Australia at the time the COVID-19 pandemic was declared. Since Australia had closed its borders, Mr Tredger applied for a travel exemption, however it was refused prior to his arrival, a fact he was unaware of until he was within 200 nautical miles of Brisbane. The Australian Border Force allowed Mr Tredger to land at Mooloolaba in Queensland.

4. Mr Tredger appeared before the Tribunal by telephone conference call on 17 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, Robert James Tredger.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

9. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities, or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

10. The delegate accepted that Mr Tredger was self-isolated for a period of 34 days during his voyage to Australia; that he could not have been infectious with COVID-19 after being in self-isolation for over 30 days; and he would not have posed a health risk on the basis of potentially infecting others with COVID-19. However, the delegate also found:

    Allowing small craft to knowingly embark on journeys to Australia whilst Australia’s borders are closed and subject to strict border measures in response to an international biosecurity emergency may jeopardise the ability of the Australian Government and health systems to slow the spread of coronavirus and to manage the health risk, including by saving lives, to the Australian community.

    Allowing Mr TREDGER to remain in Australia, having entered without having obtained the appropriate Travel Exemption, may in turn result increased attempts by Masters of craft to cross the border in contravention of the Government’s border closure policy, potentially putting the health of the Australian community at risk.

    It is very important people abide by the rules, guidelines and any procedures put in place by competent Government authorities to manage the risk of COVID-19 in the Australian community. Failing to do so would seriously undermine the Government’s messaging to the community about the importance of compliance with public health requirements more broadly, including those relating to self-isolation, distancing and other restrictions on activities and gatherings, which are absolutely critical to the control of the pandemic.

    Mr TREDGER has accepted that he may have made a poor decision in choosing to come to Australia knowing that the borders were closed and strict measures have been in place.

    Given he was aware of Australia’s border closure and his choice to travel to Australia without approval is regarded as a reckless course of action which may in turn cause others within the Australian community to recklessly flout Government measures put in place to manage the outbreak of the Novel Coronavirus pandemic.

11. The Tribunal considered the arguments submitted by Mr Tredger in his response to the Notice of Intention to Consider Cancellation and in evidence to the Tribunal, as well as the Department’s reasoning outlined above. The Tribunal also had regard to relevant case law regarding the assessment of “risk to the good order of the Australian community or a segment of the Australian community”.

12. In Tien v MIMA[1], Justice Goldberg stated that the phrase requires that there be:

    …an element of a risk that the person's presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. It involves something in the nature of unsettling public actions or activities.[2]

    [1] Tien v MIMA (1998) 89 FCR 80 at 94

    [2] Tien v MIMA (1998) 89 FCR 80 at 94

13. In ATR15 v MIBP[3], the court held that it was appropriate for the Tribunal to conclude that the risk to good order was about the risk of adverse reaction by certain members of the Australian society to the applicant’s presence in the country, rather than on the concern about the applicant’s likely or possible conduct.  There is no requirement that the adverse reaction of the Australian community, or a segment of it, be a reasonable reaction.

    [3] ATR15 v MIBP [2016] FCCA 1089

14. Mr Tredger does not deny he arrived in Australia without a travel exemption. In his response to the Notice of Intention to Consider Cancellation he declared “I do understand why grounds for cancellation exist…” but pointed to the unprecedented nature of events. He has explained that he held a valid eVisitor visa at the time and fully expected to receive clearance to enter. Unfortunately, this did not occur and due to his proximity to Australian shores, together with the absence of other options, Mr Tredger entered Australia against the border closure policy.

15. Based on the above, and the courts’ broad interpretations of s116(1)(e)(i), the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·     the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

17. Mr Tredger has an adult son and a grandson in Australia. He gave evidence that he was intending to sail his vessel to Australia for a visit, as he has done on previous occasions. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was as a genuine visitor. Mr Tredger did not make submissions regarding any compelling need to travel to Australia, that is, a powerful or convincing reason. However, the Tribunal notes the evidence that his boat, which he has lived on for 8 years remains in Australia and he is currently living in less than ideal circumstances with friends in South Africa. The Tribunal places weight in Mr Tredger’s favour on this aspect of this criteria.

    ·     the extent of compliance with visa conditions

18. Mr Tredger had visited Australia five time previously between 2011 and 2020. There is no evidence before the Tribunal that he has not complied with visa conditions and the Tribunal has taken this into account.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

19. During the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. Evidence has also been provided in writing to the Department and to the Tribunal. Mr Tredger has visited Australia five times since 2011 to visit his son and according to the evidence from his son, Robert James Tredger, he now has a grandson, born in 2018. Mr Tredger is 67 years old. He gave evidence that he has lived on his boat and has been a solo sailor for the last eight years. It was submitted that he has to return to Australia to make repairs to his vessel and retrieve it so that he can continue to occupy it in future. This is because he has few other options at present. Mr Tredger’s daughter in the United Kingdom provided evidence that she is unable to provide him with accommodation and without his boat, he would have to rely on his son financially. 

20. Mr Tredger’s son, Robert James Tredger provided several written submissions to the Department and the Tribunal attesting to the hardship that would be caused by his father’s visa being cancelled. This includes Mr Tredger’s boat being his only asset, his dependency on others for financial support, and the fact that a three-year exemption from visiting Australia would have an impact on his ability to visit his son and grandson. It was also explained how the events have caused a great deal of stress and concern. Mr Tredger himself outlined the hardship that would result from his visa being cancelled. It was stressed that for a sailor travelling widely and visiting other countries, a visa cancellation will have to be declared and is likely to have an impact on Mr Tredger’s future movements internationally.

21. For these reasons, the Tribunal accepts the cancellation of the visa is likely to have significant consequences for Mr Tredger of a financial, psychological, and practical nature.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

22. The applicant’s visa was cancelled because he travelled to Australia while border closures were in force and without receiving a travel exemption. At the time Mr Tredger held a valid eVisitor visa but due to the COVID-19 pandemic, he was not authorised to land in Australia.

23. The delegate set out the circumstances as reported by Mr Tredger during an interview and confirmed during the Tribunal hearing:

    ·     Mr TREDGER has lived on a boat for approximately 8 years. His intention was to travel to South Africa by boat via Australia to spend time with son and grandson and then return to South Africa by December [2020]

    ·     He spent 47 days crossing French Polynesia when he suddenly discovered COVID-19. He was immediately placed in lock down in Nuka Hiva for 30 days where he decided to apply for permission to enter Australia

    ·     He departed to Tahiti to refuel and replenish however was required to depart

    ·     Mr TREDGER was not aware of the refusal of commissioner’s discretion to enter Australia as his son did not advise him due to fear of mental health concerns

    ·     Multiple factors required him to move

    ·     4-5 days out he texted his son that he would arrive in Brisbane – his son informed him of the refusal however he could not go anywhere else as he had engine issues, was low on food and water and for safety had to go to port

    ·     He did not realise the severity of COVID as he has not seen a TV for months

    ·     Mr TREDGER states that if he was told of original refusal of commissioner’s discretion in Tahiti he would have stayed and formulated new plans

    ·     He intended to leave Australia by September 2020 to get to South Africa and has not attempted to deceive the ABF.

24. The Tribunal notes Mr Tredger submitted further details regarding aggravating factors in his response to the Notice of Intention to Consider Cancellation. This included the fact that it was not until he was within 200 nautical miles from Brisbane when he was informed by his son that the application for a travel exemption had been denied. Mr Tredger submitted he was low on food and water and was physically and mentally exhausted. This was because he had sailed over 14000 nautical miles alone from the Canary Islands. The Tribunal has taken into account the unforeseen situation Mr Tredger found himself in that would have been unlikely except for COVID-19. Mr Tredger explained that like many people, he did not expect the gravity of the situation that occurred globally and was hoping border closures would be short-lived. This was not the case.

25. The Tribunal considered whether the circumstances in which the grounds for cancellation arose were beyond the the visa holder’s control.  As noted by the delegate, and acknowledged by Mr Tredger, if he had been informed his travel clearance was denied, he would have formulated a different plan. It appears therefore that at least until he was at a point in his voyage that he had no option but to seek permission to land in Australia, the matter was in his control. Nevertheless, the Tribunal finds Mr Tredger’s actions, while ill advised, were not reckless, that is, without regard to danger or the consequences of his actions, as found by the delegate. It was submitted, and accepted by the delegate, that Mr Tredger had already undergone a period in quarantine at another location and was not permitted to remain in Tahiti. Based on the evidence, it appears that without intending to enter unlawfully, he continued on to Australia under the misplaced expectation he would be granted a travel exemption. Since Mr Tredger found himself in a situation without precedent, the Tribunal places weight in his favour on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

26. There is no evidence before the Tribunal to indicate Mr Tredger has not cooperated with the Department and the Tribunal has given weight in his favour in this regard.

    ·     whether there would be consequential cancellations under s.140

27. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. Mr Tredger is not currently in Australia and would not be subject to immigration detention. If the eVisitor visa is cancelled, in future he would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. In assessing this criterion, the Tribunal considered Mr Tredger’s particular circumstances including his age, the fact that his vessel that he had been living on remains in Australia and his previous compliant visa history. The Tribunal finds it relevant that Mr Tredger departed Australia despite having few options regarding his living arrangements and little financial means. These factors weigh in his favour in deciding the legal consequences of cancellation would be unnecessarily harsh.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

29. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

30. The eVisitor visa is not a permanent visa.

    ·     any other relevant matters

31. The Tribunal assessed the delegate’s reasons for decision and Mr Tredger’s response in the context of the events that took place. Mr Tredger and his son have given consistent and credible evidence that the unique circumstances brought about by the COVID-19 pandemic and resulting border closures were the primary reason Mr Tredger arrived in Australia without travel clearance. The Tribunal notes the delegate gave considerable weight in favour of Mr Tredger on many aspects of the assessment of whether to exercise the discretion to cancel his visa. The decision was ultimately made due to a finding that to do otherwise “may result in increased attempts by Masters of craft to cross the border in contravention of the Government’s border closure policy”. Having assessed Mr Tredger’s personal circumstances, the Tribunal does not agree the visa should be cancelled for this reason.

    Conclusion

1. The Tribunal has considered the circumstances of this case individually and cumulatively and is satisfied that the majority of considerations weigh in favour of the Tribunal exercising its discretion not to cancel the eVisitor visa. The Tribunal considers the unprecedented circumstances brought about by COVID-19 combined with Mr Tredger’s difficult situation as a lone sailor led to his landing in Australia without permission. The Tribunal accepts Mr Tredger has otherwise been a genuine, visa compliant visitor to Australia who would not have breached Australian law or its border closure policy in normal circumstances. The Tribunal was also persuaded by Mr Tredger’s early, voluntary departure from Australia at his own expense after quarantine in Queensland, leaving his boat and his son who would have been able to support him in Australia. The Tribunal is satisfied the issues encountered by Mr Tredger are sufficient reason for the visa not to be cancelled.

   DECISION

2. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 651 eVisitor visa.

   Wendy Banfield
   Member