Tredger (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel Mr. Tredger's Subclass 651 eVisitor visa. Mr. Tredger, a solo sailor who had been living on his boat for eight years, applied for a travel exemption to enter Australia during COVID-19 border closures. His son did not inform him of the refusal until he was close to Australian shores, at which point Mr. Tredger had already been self-isolating during his voyage. The dispute centred on whether the Minister's power to cancel a visa under section 116(1)(e)(i) of the Migration Act 1958 (Cth) was enlivened and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the ground for cancellation existed, specifically whether Mr. Tredger's presence in Australia "may be" a risk to the health, safety, or good order of the Australian community. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including government policy and the specific facts of Mr. Tredger's situation. The Tribunal also considered the meaning of "good order of the Australian community" in the context of public order and potential disruption to the administration of law or public activities.

The Tribunal reasoned that while the delegate found the ground for cancellation existed, based on the potential for allowing entry without an exemption to undermine border closure policy and encourage others to flout measures, this did not mandate cancellation. The Tribunal then exercised its discretion, finding that the majority of considerations weighed in favour of not cancelling the visa. It acknowledged the unprecedented circumstances of the pandemic and Mr. Tredger's difficult situation as a lone sailor. The Tribunal accepted that Mr. Tredger had otherwise been a genuine, visa-compliant visitor and would not have breached policy in normal circumstances. Significant weight was given to the hardship that cancellation would cause, including the impact on his ability to visit his son and grandson, the fact that his boat was his only asset, and the potential international repercussions of a visa cancellation for a widely travelling sailor. The Tribunal was persuaded by Mr. Tredger's early, voluntary departure and quarantine at his own expense.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Tredger's Subclass 651 eVisitor visa.